On Thursday (Jan 11th) this week, the House will vote to reauthorize the soon to be expired Section 702 of the FISA Amendments Act. Section 702 is intended to allow US intelligence agencies to spy on foreigners under the supervision of the FISA court. Many people agree that Section 702 has been an important and useful tool in the fight against terrorism. Unfortunately, the law’s implementation has been twisted beyond Congress’s original intent to allow for warrentless collection and searches of Americans’ communications.
Last month Rep. Kristi Noem voted against a bi-partisan amendment that would have required the government to seek a warranty prior to querying the internet data of American citizens. Opponents of the bill politicized the Orlando tragedy in order to defeat the amendment which had passed the previous two years.
Rep. Noem has a mixed track record on this amendment. She voted yes three years ago, and then has voted no the last two years. I sent a letter asking why she changed her vote, but I never received a reply. I’m speculating that Rep. Noem has been influenced in part from the intense lobbying from the FBI and intelligence community regarding this amendment. After all, the FBI would rather not bother with judicial oversight and warrants.
Just yesterday, Rep. Kristi Noem voted in favor of the deceptive H.R. 5606: Anti-terrorism Information Sharing Is Strength Act. Fortunately, the bill failed. As Republican Rep. Justin Amash put it, “… H.R. 5606 will permit the government to demand information on any American from any financial institution merely upon reasonable suspicion.” Reasonable suspicion by the way, is the same legal standard federal officials used when needlessly strip searching a teen-age Sturgis girl.
H.R. 5606 is deceptive in that it’s not really about stopping terrorists. Section 314 of the Patriot Act already allows law enforcement to seek financial records of suspected terrorists and money launderers. H.R. 5606 allows law enforcement to seek financial records based on the low “reasonable suspicious” standard for any matter of crime, all without a search warrant/judicial oversight.
Just days after voting down several gun related bills in defense of the Second Amendment, Senators John Thune and Mike Rounds voted to undermine the Fourth Amendment and grant the FBI the power to gather transaction email, chat, and web browsing data without a warrant or judicial oversight via National Security Letters (NSL). Senator Rounds even co-sponsored the measure.
Republicans are taking advantage of the shooting tragedy in Orlando to push the measure, but as noted in the Christian Science Monitor:
It’s already clear that the Cybersecurity Information Sharing Act (CISA) isn’t really needed, and may actually make the nation’s cyber-security worse. So why then, has the Senate Intelligence Committee along with Senator Thune and the Republican leadership been pushing so hard to pass this seemingly bad legislation? I think the answer may lay in its true purpose, domestic surveillance.
This article provides a good summary of just how CISA could be used for domestic surveillance, and how the information collected could be used by the government for purposes beyond cyber-security.
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.”
Rep. Noem voted “YES” to the Sensenbrenner-Massie-Lofgren Amendment to Department of Defense Appropriations Act, 2015. The measure passed with bi-partisan support (293-123). The amendment prohibits the use of funding for backdoor searches of Americans’ communications without a warrant. It also prohibits the use of funding for the NSA to mandate or request that private companies and organizations add backdoors to the encryption standards that are meant to keep you safe on the web. Here is the actual text of the amendment: