Grandstanding Against the NSA

An amendment to the 2015 defense appropriations bill, which passed the House on Thursday night by a 293–123 vote, is receiving the usual over-the-top coverage from the news media, being portrayed as protecting the American people from runaway domestic spying.

Press stories on the amendment cite the usual scaremongering comments by a handful of House members, including Representative Thomas Massie (R., Ky.), who said that “the American people are sick of being spied on,” and Tulsi Gabbard (D., Hawaii), who condemned “this dragnet spying on millions of Americans.”

Despite such nonsensical statements, this amendment will have little or no effect on key NSA surveillance programs, if it survives to become part of the Senate version of the defense bill. Nevertheless, similar moves are likely in both houses of Congress as legislators finalize legislation in response to the Snowden leaks.

Backers of the amendment said it addresses shortcomings in the USA Freedom Act, a bipartisan bill passed on May 22, which privacy advocates claim did not go far enough to rein in NSA collection programs.

However, the amendment is actually very limited in scope and does not address the most controversial aspect of the USA Freedom Act — the collection of phone records (the NSA metadata program) under Section 215 of the Patriot Act. Killing this program — which has been upheld in 36 out of 39 decisions before 19 different judges — is the main objective of NSA critics. Several members of Congress, including Senators Ron Wyden (D., Ore.) and Patrick Leahy (D., Vt.) and Representative Justin Amash (R., Mich.), hope to change the language of the USA Freedom Act, which allows the metadata program to continue under significant restrictions. The absence of any reference to the metadata in last night’s amendment suggests there is insufficient support in the House to change the act’s existing language on this NSA collection program.

Unable to muster support to stop the metadata program, the amendment’s sponsors focused on easier targets, using legislative language that would be politically difficult for many members to oppose: closing two so-called backdoors that the NSA allegedly has used to spy on Americans.

According to documents leaked by former NSA technician Edward Snowden, one “backdoor” is a 2011 rule change allowing the NSA to search its databases using the names or other identifying information of Americans under Section 702 of the FISA Amendments Act, which enables a program that collects electronic intelligence against foreign targets outside the United States.

Privacy advocates cried foul over the reported 2011 rule change but have ignored language in a document leaked by Snowden, indicating that the NSA did not intend to use this authority without appropriate oversight. According to this document, “analysts may NOT/NOT implement any USP [U.S. persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Department of Justice and the Office of the Director of National Intelligence].”

The new amendment bars 702 authority for “using a United States person identifier” unless a warrant is obtained under several provisions of FISA. However, since it is unclear whether any collection was ever conducted under the 2011 rule change, and given that the NSA barred collection under this rule until an effective oversight process was in place, the amendment’s language may be addressing an alleged problem, one that does not exist.

The amendment also prohibits the NSA (and the CIA) from asking hardware makers and software developers to build backdoors into their products to give U.S. intelligence agencies access to users’ communications. The USA Freedom Act did not include such language, probably because there are national-security reasons for the NSA to have this capability. The extent to which the NSA may have pressed technology companies to create such backdoors has not been made public.

Few media accounts mentioned an important exception in the amendment on NSA’s alleged efforts to create software and hardware backdoors: This language does not apply to intelligence collection under the Communications Assistance for Law Enforcement Act. This means that if the NSA needed software or hardware adapted for collection against al-Qaeda, it could work with the FBI to have software or hardware backdoors created as part of a criminal investigation.

The amendment’s language on these so-called NSA backdoors is pretty meaningless. More significant are tougher provisions that congressional critics of the NSA had to drop to pass the amendment. Aside from trying to kill the metadata program, this included barring the collection of any data on Americans unless they were targets of active investigations and restricting the type of information the NSA can collect to specific threats facing the United States.

The amendment’s sponsors also did not attempt to roll back last-minute changes to the USA Freedom Act that were made at the insistence of the Obama administration and that have been strongly criticized by NSA opponents. These included loosening restrictions on how the NSA can query the metadata database and restricting when companies can reveal government requests for this data. Obama officials also arranged for declassification decisions to be made by the director of national intelligence, not the attorney general, and to drop language to create an independent advocate for FISA court hearings.

I agree with Representative Steve King (R., Iowa), who wrote in a May 22 NRO article that the USA Freedom Act weakens key NSA programs that have played an important role in preventing terrorist attacks against the United States. However, given the anti-surveillance hysteria whipped up by the news media and some members of Congress, I believe this bill is the best way to salvage NSA programs damaged by Snowden’s treachery and to protect the agency’s capabilities.

Yesterday’s House amendment probably won’t undermine the USA Freedom Act bill, and there is a good chance the amendment will be rejected or watered down by the Senate. However, it is a sign of the determination by a noisy minority in both chambers to handcuff crucial counterterrorism intelligence-collection programs either because they refuse to recognize the need for them or because they are campaigning against these programs for political gain. Members of Congress who want to maintain robust intelligence collection to protect the U.S. homeland therefore must be watchful as the Senate considers the USA Freedom Act and possible Senate amendments similar to what the House passed last night.