SLAMMED

06.20.14

House Votes to Defund NSA ‘Backdoor’ Searches

After the USA Freedom Act got watered down to allow NSA business as usual, there’s some progress in the fight against the organization.

One year after Edward Snowden's revelations began, lawmakers have landed a legislative blow against the National Security Agency's dragnet surveillance of American Internet communications. In a sweeping victory led by Reps. Thomas Massie (R-KY), Zoe Lofgren (D-CA), and Jim Sensenbrenner (R-WI), a large bipartisan group secured an amendment to an annual defense spending bill which closes the legal “backdoors” that allow the NSA to spy on Americans' communications and sabotage commercial software.

The mobilization comes after last-minute backroom negotiations with the Obama administration made major changes to the USA Freedom Act, a House bill originally designed to impose restrictions on the NSA's surveillance activities but which passed with a loophole that allowed for business as usual. The Massie defense bill amendment passed overwhelmingly 293-123—a big change from a previous attempt last year, when a bipartisan coalition led by Justin Amash (R-MI) came just 12 votes shy of adopting an amendment that would have defunded the NSA's dragnet of American phone records.

“There’s no question Americans have become increasingly alarmed with the breadth of unwarranted government surveillance programs used to store and search their private data,” said the group in an emailed statement. “This amendment will reinstate an important provision that was stripped from the original USA FREEDOM Act to further protect the Constitutional rights of American citizens.”

Just as with the last year's Amash amendment, the coalition illustrated a sharp divide in Congress not along party lines, but between civil liberties advocates and those loyal to the intelligence community and the national security state. The group was also backed by two dozen tech companies and civil liberties groups including Google, CloudFlare, the ACLU, and the Electronic Frontier Foundation, who created a “Shut The Backdoor” website encouraging voters to call their representatives in support of the amendment.

Assuming the underlying defense bill passes, the measure would prevent the NSA from using defense funds to do “backdoor searches,” which exploit a loophole allowing the agency to search the communications of Americans under Section 702 of the FISA Amendments Act. That law prohibits the NSA from intentionally targeting the communications of US persons, but a 2011 document leaked last year by Edward Snowden revealed that the agency still queries and analyzes American communications collected “incidentally.” In March, Director of National Intelligence James Clapper confirmed this in a letter to Congress.

The amendment would also prevent intelligence agencies from using the funds to force software companies to build back doors into their products—one of the more shocking but still unaddressed Snowden revelations—although it does leave an exception for domestic policing under the existing Communications Assistance for Law Enforcement Act (CALEA).

“The recent and 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,” the tech companies and organizations wrote in a letter to Congress. “Both of these measures would make appreciable changes that would advance government surveillance reform and help rebuild lost trust among Internet users and businesses, while also preserving national security and intelligence authorities.”

“This amendment will reinstate an important provision that was stripped from the original USA FREEDOM Act to further protect the Constitutional rights of American citizens.”

On the House floor, NSA defenders protested on both procedural and national security grounds. “We shouldn't be doing this on an appropriations bill after only 10 minutes of debate,” objected Rep. Dutch Ruppersberger (D-MD). Others used the authority of the modified USA Freedom Act passed in May to assert that the amendment “contradicts the intent of the House” and “endangers national security.”

It was hard to predict how the House would vote now that the Freedom Act has been passed. Last year's attempted NSA amendment to the defense bill heralded the first time the spy agency's programs were openly debated following the Snowden revelations. But while it rallied widespread support, it also caused enough of a ruckus to provoke intervention from the Obama administration and the intelligence community. That amendment failed narrowly, 205-217.

This time, the administration didn't have nearly as much time to react. The House members' victory is a small one, but may be important as pressure builds on the Senate to restore the privacy protections that were removed from the Freedom Act. Earlier this week, over 30 civil liberties and human rights organizations, many of which promoted the bill in its original form, wrote to Congress saying they would not support the Senate bill unless it closes the loopholes allowing bulk collection on Americans.

“Tonight's overwhelming vote to rein in the NSA's backdoor access to Americans' data signals widespread discontent amongst House members over how the USA FREEDOM Act was watered down by the House leadership in secret negotiations with the intelligence community,” said Kevin Bankston, policy director at the New America Foundation's Open Technology Institute. “The Senate's intelligence committee […] should heed the House's message: the government should focus less on surveilling the Internet to protect it, and more on hardening its technical security against surveillance—whether by governments, cyber-criminals, or anyone else.”