When Rep. Zoe Lofgren (D-Calif.) broke with some of her privacy-focused peers in Congress to vote in favor of the USA Freedom Act, she told Reason (and others) that this would not be the end of her efforts to restrain unwarranted domestic surveillance by the federal government. She said she voted for the Freedom Act because—despite its limitations—it was an improvement over the status quo. She was nevertheless committed to continue improving that status quo further.
Yesterday afternoon she made good on that pledge, working with Rep. Thomas Massie (R-Ky.) to again pass an amendment placing further restrictions on federal surveillance against Americans. Congress passed, 255-174, an amendment to a defense appropriations bill that defunds any efforts by the National Security Agency (NSA) to bypass any warrant requirements for gathering data and correspondence produced by Americans by trying to collect it from overseas sources. Because of the nature of the Internet, information passing from person to person, even domestically, may end up digitally travelling through foreign countries during the communication process or being stored in foreign countries. Federal snoops have been using the fact that private information outside the United States doesn't get the same legal protection that it does within the United States to try to get easier access. This tactic has been used not under the just-expired Section 215 of the PATRIOT Act, but under Section 702 of the FISA Amendments Act and was not affected by the new data collection restrictions of the USA Freedom Act.
Massie and Lofgren both released statements about their success in trying to stop this form of "backdoor" surveillance:
"The USA Freedom Act is not the last word on surveillance reform," said Rep. Massie. "Backdoor surveillance authorized under Section 702 of the FISA Amendments Act is arguably worse than the bulk collection of records illegally collected under Section 215 of the Patriot Act. This amendment is a much needed next step as Congress continues to rein in the surveillance state and reassert the Fourth Amendment."
"This amendment is the most meaningful step Congress can take to end warrantless bulk collection of US persons' communications and data," said Rep. Lofgren. "We know that mass surveillance of Americans, as reported in the news, has taken place under the FISA Section 702 authority. This vote shows once again that the House is committed to upholding the Constitution and protecting Americans from warrantless invasions of their privacy. Enacting this amendment into law will benefit our economy, protect our competitiveness abroad, and make significant strides in rebuilding the public's trust."
The amendment also prohibits the government from trying to force companies to introduce a different type of "backdoor" surveillance capacity. That is, the amendment prohibits efforts to make companies build secret "backdoor" access to encryption to allow federal snoops easy access to private data. Declan McCullaugh recently wrote about the history of the federal government trying to demand encryption back doors in our technology in the May issue of Reason magazine. Read more here.
The amendment still needs to survive the Senate, obviously. Of concern, this is not the first time Massie and Lofgren have introduced this amendment. It previously passed the House but was stripped out of the omnibus spending bill it had been attached to. Perhaps the gigantic unfolding disaster of China hacking its way into the personnel records of all federal employees will make it extremely clear that weakening encryption is bound to result in really bad unintended consequences.