Lawmakers in the House refusing to quietly rubberstamp another watered-down National Security Agency reform bill are preparing to introduce a bill of their own, which tackles the agency’s remaining core legal authorities.
Texas Republican Ted Poe and California Democrat Zoe Lofgren are planning to introduce a bill Tuesday to limit NSA surveillance powers in the same way as their recent amendment to the newly revived USA Freedom Act, which was dropped along with all others during committee markup last week.
The USA Freedom Act, which passed the House but failed to overcome a cloture vote in the Senate last year, renews and places new limits on Section 215 of the Patriot Act, set to expire on June 1. Section 215 allows the government to collect in bulk the metadata on virtually all Americans’ landline telephone records, including telephone numbers, dialed numbers, call locations and durations. The USA Freedom Act places the retention of such records in the hands of a third party, and establishes new restrictions on how the government can access it via specific court orders.
The Poe-Lofgren Amendment targets Section 702 of the FISA Amendments Act and Executive Order 12333, which allow the NSA to execute so-called “back door” warrantless searches on Americans’ email and telephone communications by surveilling data incidentally swept up during the targeting of foreign communications. This data includes the actual content of communications as they travel through servers outside the U.S., i.e., email text, photos, voice and instant chats, etc.
“The House of Representatives voted overwhelmingly in favor of a virtually identical measure – House Amendment 935 (113th Congress), amending the Department of Defense Appropriations Act for FY 2015,” a coalition of amendment supporters including the American Civil Liberties Union, FreedomWorks, Mozilla and others wrote in a letter to the House Judiciary Committee last week.
“As you know, the ongoing revelations about the intrusive nature and broad scope of government surveillance have badly damaged the trust users have in the security of their Internet communications.”
Lofgren along with Kentucky Republican Thomas Massie first took aim at back door searches last year with an amendment to the 2015 Defense Appropriations Act, which cut funding to NSA used to incentivize companies into building back doors into their products for the agency to conduct surveillance. The amendment passed along an overwhelmingly popular 293-123 vote, but like the USA Freedom Act, ultimately failed in the Senate late last year, where it was removed during negotiations designed to avoid a government shutdown.
Section 702 also allows the NSA to conduct what is known as “upstream” surveillance – the collection of data as it moves through global Internet infrastructure, such as undersea fiber cables. The authorities granted to the agency by Section 702 and Executive Order 12333 essentially grant the agency the ability to surveil the actual content of Americans’ communications, so long as such content is intercepted outside the U.S., where U.S. persons are afforded no Fourth Amendment protection over data and communications. They are also the key authorities behind the controversial “Prism” program unveiled by NSA whistleblower Edward Snowden in the summer of 2013.
A Lofgren aide told InsideSources the Poe-Lofgren bill, chiefly sponsored by Poe, will prohibit intelligence agencies from searching the communications of U.S. persons collected under Section 702 and Executive Order 12333 authority without a warrant. It also prevents the government from requesting or requiring companies to build back doors into their products in order to facilitate surveillance.
Federal Bureau of Investigation Director James Comey in particular has become a strong advocate of back doors since Apple and Google announced new default encryption standards to their products last year, which in Apple’s case, not even the company itself can unlock.
Comey and other law enforcement officials across the country argue such standards will make it harder for law enforcement agencies to apprehend criminals engaged in acts such as drug trafficking, child pornography and kidnapping.
Though no members actually came out against the amendment during markup of the USA Freedom Act in the House Judiciary Committee last week, chairman and Virginia Republican Bob Goodlatte expressed concern that attaching the far-reaching amendment would result in a loss of support that could derail the bill’s current popularity and expected passage.
The amendment was eventually rejected in committee by a vote of 24 to 9, though Goodlatte said he plans to hold a hearing in the future over Section 702 and work with Poe on solutions. The FISA Amendments Act is set to expire in 2017.
