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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  1. identicon
    Big Kahuna, 23 Jul 2013 @ 10:48am

    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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