Dueling Amendments To Cut NSA Surveillance Funding; But One Is A Red Herring To Trick Congress

from the vote-for-the-right-one dept

We’ve been talking about the effort by Rep. Justin Amash to pass an amendment to the defense appropriations bill that would strip funding from the NSA when it comes to their surveillance efforts. While some in the House were trying to block his amendment from getting anywhere, it’s been ruled in order and is likely to be voted on this week, most likely tomorrow (Wednesday). To be clear (as we’ll describe in more detail below), it only tries to stop the funding of one specific program: the bulk collection of metadata. You can see the amendment here, but the key text:

None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).’’

To translate this back to English, it’s saying that Congress would basically defund the vast dragnet gathering of every bit of metadata done by the NSA on all phone records (and potentially other bulk records not yet revealed). These are done under a very questionable interpretation of §215 of the Patriot Act, which is the “tangible things” section or the “business records” section. In the law, it’s also known as 50 USC 1861, where any common sense reading of the law would suggest that it only applies to specific records related to a non-US person under investigation. But, it’s been twisted and stretched to mean the NSA can collect all records on all phone calls to search through at a later date at their leisure. What Amash’s amendment is seeking to do is to basically say no funds can be use for this crazy and twisted interpretation, but rather funds can be used for the original and common sense interpretation. That is, the feds can still request business records under this section, but only if those specific records “pertain to a person who is the subject of an investigation.”

In short: this part of the law can no longer be used to justify “collect everything and sort it out later.”

However, since NSA supporters were unable to kill the Amash amendment outright, it looks like they’ve moved onto a sneaky alternative move: getting Rep. Richard Nugent to introduce a competing amendment that looks like it does something similar in defunding NSA surveillance, but in reality just reinforces the status quo. In other words, the Nugent amendment is a nefarious red herring, designed to attract votes from Reps away from Amash’s amendment. It’s a pretty scammy trick. The Nugent Amendment reads as follows:

None of funds made available by this Act may be used by the National Security Agency to—

(1) conduct an acquisition pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 for the purpose of targeting a United States person; or

(2) acquire, monitor, or store the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication of a United States person from a provider of electronic communication services to the public pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978.

At a quick glance, these amendments may look similar. Both say stuff about how no funds can be used for certain forms of surveillance. But the specifics are very important here. There’s been an awful lot of confusion over the past couple of months of revelations between two different programs and which laws they come under. As described above, much of the concern with the vast collection of data is about Section 215 under the Patriot Act. The separate concerns, about the PRISM program, fall under Section 702 of FISA. It looks like the Nugent amendment may be pulling funding from that, but it’s not. It just says that it wouldn’t allow funds to be used for Section 702 if it’s “targeting a US person.” But Section 702 already forbids the targeting of US persons and while there are some questions as to how well the NSA follows this limitation, so far there’s been no real evidence that 702 is used to target US persons. So, this is just restating the status quo, and doing absolutely nothing to fix the gross reinterpretation of Section 215.

There are problems with a wide variety of NSA programs, but the Amash amendment actually seeks to pull funding from one of the worst parts, while the Nugent amendment has the appearance of doing so while actually just reinforcing the status quo. Someone looks like they’re trying to pull a fast one on everyone. Now might be a good time to phone your own elected representative to tell them that you expect them to support the Amash Amendment. If the Amash Amendment passes, there’s nothing wrong with the Nugent Amendment also passing — it doesn’t really change anything. But if any Rep votes for the Nugent Amendment believing it’s an alternative to the Amash Amendment, they’re making a huge mistake.

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Comments on “Dueling Amendments To Cut NSA Surveillance Funding; But One Is A Red Herring To Trick Congress”

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out_of_the_blue says:

And the other is a slightly more subtle trick, besides ineffectual.

The NSA’s mission and actions are completely out of control, most of its budget is hidden or can be, so any attempt to twiddle by power of the purse is simply theater. As everyone knows, yet Mike still runs this piece as if there’s real opposition.

Take a loopy tour of Techdirt.com! You always end up same place!
Why aren’t you fanboys helping out Mike with links back to here as I do? What a bunch of innovation-less freeloaders!

kitsune361 (profile) says:

Re: And the other is a slightly more subtle trick, besides ineffectual.

He has a point. Nothing will happen unless you defund the whole organization.

The NSA will still use whatever money they get to do whatever they want, they will either: A) stretch another part of the law to justify it; B) just tell everyone they can’t talk about it because its S-E-C-R-E-T; or C) just do it anyway and lie about it. They’ve already proven their willingness to lie to Congress; while Congress and DoJ have already proven that they won’t hold them accountable when caught lying.

Chairperson of United Hackers Association says:


till you spying sacks a shits wake up and realize that spying on us is not cool , im doing everything i can to fuck you back economically, ergo no pipeline no trade and push to do trade with other nations that have simular views.

IF the retards in power dont get the damage this does well heres on for you

MY ISP business will not host one server in the usa EVER…

in fact my actual american partner has hooked up with me to do this in Quebec Canada instead and ill add..
the last time i helped a Brit do this in 2 months we had 100 dedicated clients with a profit of around 2 grand a month…if my health at time had not gone south….well lets just say i was affecting the global pricing market as some of the big clients were coming to me for hosting…

i dont lie and use the word “CLOUD” and i give 24/7 real human being support and ive automated a ton of installs and applications and do tons of the custom work myself or with a few buds.

Ive had one guy over pay on purpose cause of that level of support and security.
I also give free advice and such on all softwares and hardware.
Last time i had a server in the usa?
1999….in florida.
before that…texas where a kind dude gave 200 of us space to muck around….he works for the pentagon and told me “DAMN you crash the server more then everyone combined , BUT DONT STOP…your teaching me so much “
he went to pentagon, i became a leader of 3200 hackers.

ahh the good ol days of crazy.net
see ya on flipside hercules…..
and the guy that took over started spying on peeps emails and we destroyed the box over and over.

and left.

i could write a very interesting book about my life so far….thing is it isn’t over …..

up in canada we have these conservatives that do the same thing and use OMNIBUS bills to ram massive changes to bills through and as i see most leave so much vagueness into law as to be literally against the charter of rights and freedoms.

until you sue however the law is the law. and its all about trying ot create the same atmosphere in the usa as here..a land of lawyers, cops and military… A POLICE STATE…

Sorry to break it boys but this lil rid eya all been on willa not keep going.

FINLAND now is going backwards in copyright and watch as this allows massive growth….

nbcart (profile) says:


I am surprised that you seem not to believe that Canada has been a big “partner” of the NSA mass surveillance blitz. I will be money that Vic Towes and his boss, our Prime Minister, Steven harper (SIC) have already sold our privacy sovereignty to the NSA. (Take a look at the location of the undersea cables heading over to Europe if you have any doubts) I patiently await additional details of the unlubricated NSA penetration of all Canadians. BTW, most of our data resides on US based servers anyway.

Anonymous Coward says:

Inaccurate and misleading title.

None of these proposed solutions are designed to trick Congress in any way, shape, or form. These people are (at least in theory) well versed in political jargon, and quite aware of what these amendments do (and if they claim they don’t, then they’re basically admitting they aren’t really qualified to be part of Congress).

What all this posturing is designed to do is trick the GENERAL PUBLIC into thinking something is really being done to address the problem.

Anonymous Coward says:

Re: Re:

The question is probably more about if the representatives read it.

Earlier comments suggest that some politicians ask for a party line and stick to it, some politicians read through specific lobbyists comments to find out what they need to think about it and some of the more honourable read through all lobbyist opinions and make a judgement from them, which more or less is a fulltime job for each of their several committees.

None of the above ways to do politics actually forces the politician to read the text. Politics is mostly about posturing and making yourself look shining and your opponents as dirty. Actually reading laws is not a requirement to do well.

Eponymous Coward says:

I think the insidiousness in this is that it (rightly?) assumes the ignorance of we constiuents not understanding the difference between the bills, giving cover to our representatives so that they can claim they acted to defund these unpopular programs when in fact they did not. If they are called out on the actual difference of the bills I’m sure they’ll feign ignorance themselves realizing that the majority of people won’t really be paying close attention to the subtle nuances in the argument. I think the best path is to expose the obviousness of this attempt to cloud the issue to keep things status quo and call out Congress critters for going along with it, exactly what Techdirt is doing, but to also try and inform those around us that aren’t paying as close attention so they start to see these games they play.

Big Kahuna says:

Gone Rogue

Great article and great observations on these two competing amendments. We, as a society, need to stay informed on reform legislation to ensure that any congressional actions to stem NSA spying constitute real reforms as opposed to actions designed to fool the public into thinking the programs have have undergone real reforms.

However, it is possible that the NSA is a rogue agency, in which case, no law will ever stop them and nothing will make the NSA accountable except for the American people. They may always find government backdoor funding and secret interpretations to make their illegal activities seem legit.

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