Bipartisan majority cuts funding for warrantless spying on Americans and bans insertion of "Backdoor" surveillance measures on IT products and services
In an unexpected late vote Thursday 2014.06.19, a significant majority in the US House of Representatives voted to pass a bipartisan amendment to Military Funding Bill H.R. 4870 that defunds NSA and CIA surveillance operations targeting US Citizens except under certain emergency circumstances and to ban insertion of so-called "Backdoor" hardware or software hacks in IT products and services, which have come to haunt US IT Corporations.
The bill, co-sponsored by Reps. James Sensenbrenner (R-WI), Thomas Massie (R-KY), Zoe Lofgren (D-CA), and others, was introduced as an amendment to a military funding in a tactical move clearly designed to bypass review by the Intelligence Committee, which typically acts as a proxy to defend Intel agency interests.
While the bill still needs to pass in the Senate, where it could be defanged or rejected, attaching it to a 2015 funding bill, the sponsors have improved chances to enact the rules as at least stop-gap measures until more substantial amendments to the Foreign Intelligence Surveillance Act of 1978, which it applies to.
In essence, the bill:
• Prohibits using US Citizens as "selectors" for electronic surveillance except in the exceptional instances out lined in Section II. Notably, this does NOT apply to persons designated as "non-US persons" by the "51% rule" mandated by FISA.
• Prohibits government officials or employees from inserting, or requiring other parties to insert hardware or software to facilitate clandestine "Backdoor" surveillance used against any US persons. While this might seem to allow such methods to be used against foreign persons, in practice it would be impossible to exclude the potential impact on US persons except in very narrowly targeted circumstances.
The latter comes hot on the heels of revelations, this week, by Der Spiegal, that the NSA's Special Source Operations (SSO) gave plausible deniability cover to non-governmental "witting partners" in "exciting joint ventures" who aided the WHARPDRIVE program to tap optical cables, instructing them to lie and remove taps when discovered by third parties.
After the fold, the text of the bills and the usual fun poll for lovers of evil.
Text of Bill (transcribed)
AMENDMENT TO H.R. 4870, AS REPORTED
OFFERED BY MR. SENENBRENNER OF WISCONSIN, MS. LOFGREN OF
CALIFORNIA, MR. MASSIE OF KENTUCKY, MR. CONYERS OF MICHIGAN,
MR. POE OF TEXAS, MS. GABBARD OF HAWAII, MR. JORDAN OF OHIO,
MR. HOLT OF NEW JERSEY, MR. NADLER OF NEW YORK, AND
MR. PETRI OF WISCONSIN, MS. DELBENE OF WASHINGTON,
MR. FARENTHOLD OF TEXAS, MR. BUTTERFIELD OF NOTRH CAROLINA, AND
MR. SANFORD OF SOUTH CAROLINA
At the end of the bill (before the short title), insert the new section:
SEC. _. (a) Except as provided in subsection (b), 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 intellegence insformation acquired under section 702 of the Foreign Intellugence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier:
(b) Subsection (a) shall not apply to queries for foreign intellegence information authorized under section 105, 304, 703, or 705 of the Foreign Intelligence Survelience Act of 1978 (50 U.S.C. 1805; 1842; 1881b; 1881c; 1881d), of title 18, Unoted States Code, regardless of under what Foreign Intelleginece Act authority it was collected.
(c) Except as provided for in subsection (d), none of the funds made available by this Act may be used by the National Security Agency or the Central Intellegence Agency to mandated or request that a person (as defined in sections 1801(m) of title 50, United States Code) alter its product or service to permit the electronic surveillance (as defined in section 1801(f) of title 50, United States Code) of any user of said product or service for said agencies.
(d) Subsection (c) shall not apply with respect to mandates or requests authorized under the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.).
(signed) [Thomas Massie KY-4]
{see the late change adding new Section II below}
A late amendment to subsection (b) authored by Lofgren bolstered support:
AMENDMENT TO THE RULES COMMITTEE PRINT FOR H.R. 4435
OFFERED BY MS. LOFGREN OF CALIFORNIA
Subtitle B of title XVI is amended by adding at the end the following new section:
SEC. ll. PROHIBITION ON USING FUNDS TO CONDUCT WARRANTLESS SEARCHES FOR THE COMMUNICATIONS OF UNITED STATES PERSONS
(a) PROHIBITION ON USING FUNDS FOR THE SEARCHING OF COLLECTIONS OF COMMUNICATIONS OF UNITED STATES PERSONS. — Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act shall be used by an officer or employee of the United States to conduct a search of a collection of communications acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) in an effort to find communications of a particular United States person (other than a corporation).
(b) CONCURRENT AUTHORIZATION AND EXCEPTION FOR EMERGENCY SITUATIONS.—Subsection (a) shall not apply to a search for communications related to a particular United States person if—
(1) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805; 1824; 1881b; 1881c; 1881d), or title 18, United States Code, for the effective period of that order or emergency authorization;
(2) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or
(3) such United States person has consented to the search.
{end}
While it remains to be seen whether this survives the Senate, the strong bipartisan support for this bill and the fact it uses "purse strings" to enact stop-gap measures rather than taking another stab at substantive reform in the face of the "USA Freedom Act" fiasco seems to suggest Representatives are feeling increased political pressure from the IT industry that has faced significant loss of customer confidence and business since the revelations by Edward Snowden of global mass surveillance by the NSA and UK GCHQ.
Even if this passes the Senate intact and is signed into law by the President, I personally doubt it will do much to solve the problems US IT companies face in the international markets they dominate and depend on, it does demonstrate some determination by Congress to finally act to curtail the use of methods that are of questionable legality as Appellate Courts increasingly challenge the constitutionality of measures taken since the FISA Amendments Act legitimized domestic "Backdoor Surveillance", aided and abetted by secret ruling by the FISA court.
Lets see if this has legs.