Surveillance Reform: the Congressional‐​Intelligence Complex Strikes Back

The House recently approved a vitally important amendment to the DoD appropriations bill that would protect Americans’ civil liberties from an encroaching surveillance state. Introduced by Rep. Thomas Massie (R-KY), it would bar warrantless searches of the stored communications of Americans collected under the FISA Amendment Act. It would also bar the use of taxpayer funds to compel companies to build products with compromised encryption to make NSA surveillance easier. Those same electronic “back doors” could also be exploited by foreign intelligence services and malicious hackers.

The issue has been a controversial one for several years, since Senator Ron Wyden (D-OR) determined that the National Security Agency was exploiting a loophole in existing surveillance law to search, without a court order, the communications of American citizens previously collected by NSA. And the encryption issue has become red hot, with FBI Director James Comey engaged in a public propaganda campaign against allowing the American public to encrypt (and thus protect) their communications.

As he did last year, Massie teamed with Democrat Zoe Lofgren of California to argue for the amendment’s adoption. Nunes lobbied hard against it, but lost on the House floor 255–174—making it the second year in a row that the House has approved the prohibitions. But Nunes isn’t giving up the fight.

Last week, Nunes and 11 of his House Intelligence Committee colleagues sent a letter to every House member who voted for the Massie‐​Lofgren amendment, asking them to publicly renounce their vote for it. In doing so, Nunes cited comments made by Director of National Intelligence James Clapper in a June 12 letter to the committee.

In the letter, Clapper claims that if implemented the Massie‐​Lofgren amendment’s database search ban on American’s data would “…seriously impair the [Intelligence Community’s] ability to discover and analyze threats.” Except it wouldn’t. It would simply mean that if the government wanted to get information on a U.S. citizen who it believes is in contact with a known or potential terrorist, they would have to get a court order. Exactly as the Constitution intended.

Clapper also claimed that the ban on mandating that American tech companies build in encryption “back doors” to their products would prevent the FBI and the Intelligence Community from working with tech companies “even with their consent”. Also false. The amendment simply prohibits the government from forcing companies to make defective products. Nowhere does the amendment prohibit voluntary cooperation with federal law enforcement agencies.

This is the same Director of National Intelligence who lied to Senator Wyden under oath about the scope of NSA’s mass surveillance against Americans, repeatedly changed his explanations for his perjury, and who has grossly exaggerated the number of documents Edward Snowden gave to the press and their impact on U.S. intelligence activities.

The Nunes‐​Clapper letter is the first salvo in the battle over the fate of this critically important surveillance reform measure. It will not be the last.

It also demonstrates that despite the enormity of the revelations provided to the world by Edward Snowden about the scope and illegality of the U.S. government’s mass surveillance programs, the Intelligence Community’s power to fight back remains potent — especially when its ostensible watchdogs are its biggest supporters and apologists.