In the wake of the USA FREEDOM Act’s passage, Congress has signaled that it is perhaps ready to begin scaling back the broad powers of the surveillance state. The Senate acted decisively, and overwhelmingly, to pass USA FREEDOM by a powerful 67-32 margin, opposing all amendments proposed by Senate Majority Leader Mitch McConnell.
And now the House of Representatives is following suit.
Rep. Thomas Massie’s (R, KY-4) amendment, which prohibits the National Institute of Standards and Technology (NIST) to use funds to coordinate or consult with intelligence agencies on setting weak cryptographic standards that would enable surveillance, in a roll call vote, passed by a tremendous margin of 383-43 in a late afternoon vote yesterday. Not only that, but Reps. Ted Poe (R, TX-2) and Zoe Lofgren (D, CA-19) proposed a limitation amendment that would prevent the Department of Justice and FBI from mandating, or even requesting, that an American firm insert backdoor access protocols into their products and Rep. Jared Polis (D, CO-2) submitted an amendment prohibiting bulk data collection by the Department of Justice. Polis’ amendment was stated thusly:
None of the funds made available by this Act may be used to execute a subpoena of tangible things pursuant to Section 506 of the Controlled Substances Act (21 U.S.C. 876) that does not include the following sentence: “This subpoena limits the collection of any tangible things (including phone numbers dialed, telephone numbers of incoming calls, and the duration of calls) to those tangible things identified by a term that specifically identifies an individual, account, address, or personal device, and that limits, to the greatest extent reasonably practicable, the scope of the tangible things sought.”
And to top it all off, the House also passed the Issa-Farenthold amendment, which would limit law enforcement agencies’ ability to deploy stingrays—devices that mimic a cell tower’s wireless signal in order to coax connections and engage in passive data collection—without a warrant. Per the legislation’s text:
None of the funds made available by the [appropriations] Act may be used to operate or disseminate a cell-site simulator or IMSI [International Mobile Subscriber Identity] catcher in the United States except pursuant to a court order that identifies an individual, account, address, or personal device.
Although some representatives continue to call for more onerous regulation of encryption, there are still many voices of support for consumer privacy and encryption. For example, in response to House Homeland Security Committee Chairman Michael McCaul’s contention that the use of encryption is a “tremendous threat to the homeland,” Rep. Ted Lieu (D, CA-33) pointedly argued that “you have a dark place in your home you can talk, you can meet in a park – there are a zillion dark places the FBI will never get to and they shouldn’t because we don’t want to be monitored in our home.” In a recent article for The Intercept, Rep. Lieu went on to support encryption:
Lieu said the FBI “will fail partly because what they are asking for is technologically not possible … You cannot put in a back door only for the good guys. The computer is ones and zeros – it can’t tell who is putting in that encryption key, whether it’s the FBI director, the leader of Hamas or a criminal actor.”
Hopefully these are signs that Congress has heard the concerns of American voters, civil liberties organizations, and the business community, and is responding with appropriate legislative measures. Encryption is one of the mainstays of the Internet’s safety net, without which the average individual would be unable to engage in secure financial transactions, secure information transfers, or evade oppressive government censorship – a concern most notable in countries where freedom of expression is notoriously stifled. If the intelligence community were able to stipulate the inclusion of backdoor access points, a chilling effect would wash over Internet innovation, stifling the ability for individuals to engage in secure communications and providing nefarious actors with the means to perpetrate criminal acts against innocent, unsuspecting Internet users. It is refreshing to see that the majority of the House has rejected the fear mongering of surveillance hawks and taken such a stalwart stance in defense of civil liberties.
All in all, this has been an exceptionally bright week for the state of civil liberties in America. Although there is still much to do, we can finally take solace in Congress’ willingness to begin addressing the American peoples’ concerns over rampant and ubiquitous government surveillance. A few battles have been won, and many skirmishes are being fought, but the war for Americans’ privacy is only beginning.