House of Representatives Moves to Ban NSA's 'Backdoor Search' Provision
Surveillance reform gained new congressional momentum as the US House of Representatives unexpectedly and overwhelmingly endorsed stripping a major post-9/11 power from the National Security Agency late Thursday night.
By a substantial and bipartisan margin, 293 to 121, representatives moved to ban the NSA from searching warrantlessly through its troves of ostensibly foreign communications content for Americans' data, the so-called "backdoor search" provision revealed in August by the Guardianthanks to leaks from Edward Snowden.
The move barring funds for warrantless searches "using an identifier of a United States person" came as an amendment added by Zoe Lofgren, Democrat of California, and Thomas Massie, Republican of Kentucky, to the annual defense appropriations bill, considered a must-pass piece of legislation to fund the US military. Also banned is the NSA's ability, disclosed through the Snowden leaks, to secretly insert backdoor access to user data through hardware or communications services.
"I think it's the first time the House has had the opportunity to vote on the 4th Amendment and the NSA as a discrete item. It was an overwhelming vote," Lofgren told the Guardian. She said the vote succeeded despite efforts of what she called "the intel establishment."
It swiftly circumvented a carefully crafted legislative package, backed by the White House and the NSA, presenting President Obama with an uncomfortable choice about vetoing the entire half-trillion dollar spending bill.
That legislative package, known as the USA Freedom Act, had jettisoned a measure to ban backdoor searches in order to move the bill out of committee. Losing the backdoor-search prohibition prompted, in part, civil libertarian groups to abandon their support of the House version of the bill. Several senators, including Democrats Ron Wyden and Mark Udall, are seeking to reinstate the ban in the Senate version currently under judiciary committee consideration.
The NSA considers its ability to search for Americans' data through its massive collections of email, phone, text and other communications content a critical measure to discover terrorists and a sacrosanct prerogative. Its authorities to do so stem from a provision, called section 702, of a key 2008 surveillance law, the Fisa Amendments Act, which Obama endorsed as a legislator and presidential candidate.
During a March hearing of a government privacy board, lawyers for the intelligence community sharply disputed that such warrantless searches are illegal or unconstitutional, as civil libertarians consider self-evident. They contended that NSA ought to be able to search for US data at their discretion since Section 702 authorizes the prior collection of such communications.
"That information is at the government’s disposal to review in the first instance," Rajesh De, the NSA's senior lawyer, argued to the panel.
The NSA and its allies contend that searching through the data for information identifying Americans is qualitatively distinct as a privacy issue from an explicitly banned practice called "reverse targeting," whereby the NSA deceptively structures its broad, foreign-focused interception powers to intentionally collect communications of Americans or people in the United States.
But civil libertarians argue that the distinction is meaningless when the NSA harvests data on a massive scale, inevitably including data from Americans.
"The mere fact that the government’s 'targets' are foreigners outside the United States cannot render constitutional a program that is designed to allow the government to mine millions of Americans’ international communications for foreign intelligence information," ACLU deputy legal director Jameel Jaffer told the privacy board in March.
That board, the Privacy and Civil Liberties Oversight Board, is preparing to issue a report into the government's backdoor searches. That report,due July 2, is eagerly anticipated by both the NSA and its critics, as it is likely to add momentum to either side in the ongoing legislative debate on the scope surveillance.
Additionally, US intelligence leaders promised Wyden during a hearing earlier this month they would disclose for the first time how many searches for US data under the 2008 law the NSA has performed.
As an indication of how critical the NSA considers its search powers to be, it fought hard behind the scenes to strip the USA Freedom Act of its backdoor-search ban. By contrast, it accepted losing its powers to directly collect US phone metadata in bulk, which it had argued was similarly crucial.
The amendment's success came as House Republicans were preoccupied with selecting a new majority leader to replace Virginia's Eric Cantor, who lost his reelection primary. Cantor, a critical figure in the House leadership, was key to aiding the NSA and its allies inweakening privacy protections in the USA Freedom Act ahead of passage last month.
"We’ll be reviewing that amendment, and so I can’t comment on it at this time," said National Security Council spokeswoman Caitlin Hayden.
"More generally though, the administration has made clear that it supports certain changes to Fisa designed to ensure our intelligence and law enforcement professionals have the authorities they need to protect the nation, while further ensuring that individuals’ privacy is appropriately protected. We believe the USA Freedom Act passed by the House by a wide bipartisan majority accomplishes that goal. We strongly support that bill, and have urged the Senate to quickly consider it."
Jeffrey Anchukaitis, a spokesman for the director of national intelligence, declined to comment.
Lofgren cautioned that appropriations bills containing controversial provisions do not have smooth roads to passage. But, she said, the vote "helps the Senate understand that the House of Representatives on an overwhelming basis, bipartisan, wants the 4th Amendment respected."
She continued: "It should change the trajectory of this."