Tech Law

Failed Vote Means No End in Sight to NSA’s Data Slurping

A proposal to restrict the NSA’s surveillance of Americans’ phone calls was defeated by a mere 12 votes in the House of Representatives on Wednesday in a battle that drew unusual bipartisan support at a time when partisanship is running at an all-time-high.

Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., introduced an amendment to the defense-spending bill that sought, among other things, to restrict the collection of metadata to instances connected to a relevant ongoing investigation.

White House officials pulled out all the stops to fight the amendment, meeting with lawmakers and threatening a presidential veto if it should pass.

Vox Populi Vox Dei?

The introduction of the amendment “came off a clear affirmation of the American public’s opinion, in recent polls, that showed a clear majority of Americans think the NSA’s use of the Patriot Act to spy on Americans is overreaching, invasive and unconstitutional,” Mark Jaycox, an analyst at the Electronic Frontier Foundation, told TechNewsWorld.

“It also came off a hearing of the House Judiciary Committee where members threatened to stop the use of Section 215,” he added.

While votes for the amendment constituted lawmakers’ reflection of public distaste in addition to their own opinions, lawmakers who voted against it “don’t want to be on record as opposing it, because if something happened on American soil — whether or not it had anything to do with the NSA program — it would be a huge hammer to hold over their heads,” remarked Steven Weber, a professor of political science at the UC Berkeley School of Information.

It’s likely the Obama administration opposed the amendment for the same reasons lawmakers did.

What Was Proposed

Had it been adopted, the Amash-Conyers amendment would have restricted Foreign Intelligence Surveillance Court orders under Section 215 to records pertaining to people under investigation.

However, the NSA and FBI could have continued to acquire business records and other tangible things such as receipts and phone records. They could also have continued collecting telephone metadata without a warrant if there were a reasonable connection with the targets of investigations.

The amendment would have required the FISC to be involved every time the NSA searched Americans’ phone records. The court would have been provided with a substantive, statutory standard to apply to ensure Americans’ civil liberties were not violated.

The only publicly acknowledged success under Section 215 so far is the conviction of a taxi driver for sending money to a Somali group that apparently posed no direct threat to the U.S., Representative Conyers pointed out. Further, the data could have been obtained without having resorted to Section 215.

Fighting the Power

In the wake of the amendment’s defeat, the House Intelligence Committee might “make informal efforts behind the scenes to get more oversight,” UC Berkeley’s Weber told TechNewsWorld.

Instead of arguing in defense of civil liberties, “the more sophisticated analysts on the staff understand the program … and will try to get the NSA to prove that the program is cost-effective,” Weber predicted. “This is a super-expensive program, and you’ll get a lot of false positives.”

Major U.S. high-tech companies, including Google, Microsoft and Apple, have publicly demanded they be allowed greater transparency in publicizing the number of FISC requests they receive, but that move is aimed at self-preservation rather than civil liberties, Weber said.

“They know exactly what the NSA is doing — they sold them the technology for this — but they want the NSA to take the flak for [the surveillance],” Weber said.

“In many respects, this is a reasonable approach,” he acknowledged. “This is a government program, and the companies are complying with the law, and they don’t want to be blamed for that.”

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