Rep. Noem flips on NSA Warrantless Searches

On June 11th, Congress passed the Massie-Lofgren admendment to the 2016 Defense Appropriations bill.  From Rep. Massie’s press-release:

Under Section 702 of the FISA Amendments Act, Americans’ private data and communications – including emails, photos, and text messages – can be collected by intelligence agencies, provided that data or communication at some point crosses the border of the United States. Given the current fluid nature of electronic communications and data storage, in which corporate and private server farms store Americans’ data all over the world, this loophole could allow intelligence agencies access to a vast swath of communications and data without warrant protection. Intelligence officials have confirmed to Congress that law enforcement agencies actively search the content of this intercepted data without probable cause, and have used evidence gathered to assist in criminal prosecutions. Government agencies have also reportedly coerced individuals and organizations to build encryption “backdoors” into products or services for surveillance purposes, despite industry and cryptologist claims that this process is not technologically feasible without putting the data security of every individual using these services at risk. The Massie-Lofgren Amendment would prohibit funding for activities that exploit these “backdoors.”

While the amendment passed with an easy majority, Rep. Kristi Noem voted against the amendment.  This comes, however, after she voted “YES” for the exact same amendment in the previous years’ Defense Appropriations Bill.  Rep. Noem’s change in position is disconcerting, and here’s why.

As mentioned in Rep. Massie’s press release, the government is allowing itself to collect the communications of Americans whenever those communications cross an international border so long as the collection is “incidental”.  i.e. when the government is intercepting large swathes  of communications that happen to include the communications of Americans.  The government then allows itself to query and examine the communications of Americans without probable cause and a warrant.  By voting against this amendment, Rep. Kristi Noem is effectively taking a stance that US citizens loose their constitutional rights when communicating across borders.

The notion that we loose our constitutional rights when our communications cross a border is significant. Internet traffic does not respect borders, and people have very little control over the path our communications might take.  Here’s a personal example.  I employee an internet firewall at my place of work which blocks all internet traffic from South East Asia.  One day, I attempted to log into my account at a large national bank, and I found that the web site was being blocked by my firewall because the bank’s web site was being served from South East Asia.  A few days later, I could access my bank again when it was being severed from the United States.  So what happened?

Most companies with a large internet presence use Content Distribution Networks (CDNs).  With the CDN, a copy of the bank’s web site is hosted on multiple sites around the world.  The idea is that the web site will be served from the location closest to the customer.  But if one site becomes congested, then the web site may be severed from another location that is less congested.  So the very nature of the internet makes it almost impossible to guarantee that your communication won’t cross a border.  It’s also a bit ironic that we have Airmen from Ellsworth AFB fighting overseas to defend our constitutional rights, yet the government disregards those rights when the families of those Airmen communicate with their loved ones overseas.

The second part of the amendment prohibits the NSA and CIA from mandating surveillance backdoors in the devices and services we use day to day.  Backdoors in American products and services have cost billions as foreign companies turn to China and Europe for their technology needs.  Beyond that, surveillance backdoors in products and services make all Americans and our critical infrastructure more vulnerable.  In 2010, for example, an IBM researcher revealed how hackers could take advantage of the surveillance backdoors in Cisco routers to spy on all of the communications traveling though them.  That same year, it was revealed that the Chinese hacking of Google was made possible by the back door access that Google had created for the government.

So as not to interfere with existing laws for authorized wire-taps, the amendment does state that it, “shall not apply with respect to mandates or requests authorized under the Communications Assistance for Law Enforcement Act”.

The Massie-Lofgren amendment is another step towards reining in an out of control surveillance state and restoring the Fourth Amendment.  I’ve seen nothing to suggest that America would be any less safer if our intelligence agencies were required to get a warrant to search the private communications of Americans.  The amendment also helps American technology companies compete in a global economy while increasing the security of the services and devices ordinary American use every day.  I’m disappointed in Rep. Noem’s new position, and I’ll reach out to her for her reasoning.  I’ll update this post when and if she responds.

The text of the amendment can be found here.  Search for “amendment offered by mr. massie”

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