from the liar-liar dept
For the past two years, around this time, we've talked about the importance of an attempt by Reps. Thomas Massie and Zoe Lofgren to prevent two different kinds of "backdoor" surveillance -- the use of backdoor searches to the NSA's 702 collection and (perhaps more importantly) attempts to backdoor encryption. The Massie/Lofgren amendment has been overwhelmingly supported in the House the past couple of years, but the Senate (with help from surveillance state supporters in the House) keeps conspiring to strip it out of the final agreement.
The Massie/Lofgren amendment is back again this year, and it's pretty straightforward. First, it defunds gov't employees from doing "backdoor" searches (i.e., searching through massive databases of material on Americans that was collected "incidentally" but still kept anyway):
... none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier.But, more importantly, it blocks any funding for attempts to force anyone to backdoor encryption:
none of the funds made available by this Act may be used by the National Security Agency or the Central Intelligence Agency to mandate or request that a person (as defined in section 101(m) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(m))) alter its product or service to permit the electronic surveillance (as defined in section 101(f) of such Act (50 U.S.C. 1801(f))) of any user of such product or service for such agencies.While that's a bit of a word jumble, in short, it says that the NSA and CIA cannot force companies to backdoor encryption to enable government surveillance. This point is especially important this year, following on the DOJ/FBI's flubbed attempt to force Apple to decrypt some iPhones earlier this year, combined with the dangerous Burr/Feinstein anti-encryption bill (thankfully dead for now), to offer Congress a clear attempt to say that it will not accept attempts to backdoor encryption.
In the past, those in Congress against this amendment have tried to stop it by totally misrepresenting what the amendment covers, and that appears to be the strategy of Nunes and Westmoreland this time around.
In the letter being sent around to other Representatives, they lay on a thick layer of misleading to downright false FUD (fear, uncertainty and doubt) -- and of course, they exploit the tragedy in Orlando to further their misleading claims.
The national security threats to the United States and its allies are greater today than at any point since 9/11. To keep Americans safe, our Intelligence Community needs to fully employ every tool available to it. We cannot be lulled into a false sense of security. As recent events in Orlando have made tragically clear, terrorists will continue to attack the U.S. homeland.That seems like a somewhat misleading and self-serving description of what happened in Orlando. While there's still a variety of reports, it's clear that the shooter was an American, born in America, and it doesn't appear he had any connection whatsoever to overseas terrorist organizations. In short: this doesn't look like an issue that the intelligence community would have been able to figure anything out about. The shooter was already known to the FBI, who investigated him and found nothing. And then it appears that he did the shooting on his own, meaning there is little "communication" that the intel community would have needed to track. But even if there was, nothing in this amendment would stop law enforcement or the intelligence community from getting access to such information. Nothing.
But Nunes and Westmoreland are just warming up. It's the next part that is really extremely misleading.
Despite the threats that face us, Congressman Massie and Congresswoman Lofgren's amendment to the Department of Defense Appropriations Act (H.R. 5293) would end the use of a vital tool for identifying and disrupting terrorist plots at home and abroad. If this amendment were enacted, the Intelligence Community would not be able to look through information lawfully collected under FISA Section 702 to see if Omar Siddiqui Mateen, the Orlando nightclub attacker, was in contact with any terrorist groups outside the United Statets.This is just blatantly false. It's true that outlawing backdoor searches would mean that law enforcement and intelligence wouldn't be able to do backdoor searches on Mateen's communications, but this falsely implies that's the only way in which Mateen's communications could be checked. That's just wrong. Law enforcement still can (and I'm sure already has) get access to Mateen's call records and lots of other communications information through a variety of third parties (and I'm sure would have no trouble getting warrants issued if necessary). Law enforcement and the intelligence community could still get a warrant to search through the information that has been collected. They just need to get a warrant -- which should be pretty damn easy. So there's nothing stopping law enforcement from figuring out if Mateen was in contact with people overseas. The bill just means that the intelligence community can't just go randomly sniffing through the massive database they've already collected of "incidental" information from other searches.
This is no way to legislate. To blatantly mislead their Congressional colleagues in order to protect programs that harm Americans' privacy and security is a pretty cowardly approach to handling these issues. It's fine to debate the relative merits (or lack of merits) of the Section 702 program or other surveillance techniques, but flat out lying to colleagues to block an amendment that they've overwhelmingly supported for the past two years just seems... dishonest and sleazy.