POGO Supports Amendment to End Warrantless Searches of Emails

June 18, 2014

Dear Representatives Boehner, McCarthy, Rogers, Frelinghuysen, Pelosi, Hoyer, Lowey, and Visclosky:

We are writing in support of an amendment that Representatives Massie and Lofgren intend to offer to H.R. 4870, the Department of Defense Appropriations Act, with the support of a bipartisan coalition of cosponsors. The recent and ongoing revelations about the intrusive nature and broad scope of government surveillance have badly damaged the trust users have in the security of their Internet communications. This amendment would help begin to restore that trust in two ways.

First, the amendment would address the “backdoor search loophole” by prohibiting the use of appropriated funds to enable government agencies to collect and search the communications of U.S. persons without a warrant using section 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. 1881a), a statute primarily designed to pick up communications of individuals abroad. Although section 702 prohibits the government from intentionally targeting the communications of U.S. persons, it does not impose restrictions on querying those communications if they were inadvertently or incidentally collected under section 702. Moreover, as a result of an apparent change in the NSA’s internal practices in 2011, the NSA is now explicitly permitted under certain circumstances to conduct searches using U.S. person names and identifiers without a warrant.[1] In March, James Clapper, the Director of the Office of National Intelligence, confirmed in a letter to Senator Wyden that such warrantless queries of U.S. person communications are being conducted.[2]

We appreciate that section 8127 of H.R. 4870 prohibits the use of funds by the NSA to target a section 702 acquisition against a U.S. person or to acquire content under section 501 of the Act (“215”). However, it is widely understood that those prohibitions are already established in statute, and therefore those changes would do little beyond clarifying current law. We believe that Representatives Massie and Lofgren’s proposal judiciously complements these provisions by ensuring similar treatment of information about U.S. persons after its collection.

Second, the amendment would prohibit the use of appropriated funds to require or request that any person or entity build back doors in its products or services that would facilitate electronic surveillance of users of such products or services. This is a sensible limitation that not only improves transparency of surveillance practices, but also promotes security by avoiding the creation of potential vulnerabilities that can later be exploited by criminals and other bad actors. Notably, this particular provision would exempt any mandates or requests that are made with regard to products and services that are covered under the Communications Assistance for Law Enforcement Act (CALEA).

Both of these measures would make appreciable changes that would advance government surveillance reform and help rebuild lost trust among Internet users and businesses, while also preserving national security and intelligence authorities. We urge passage of Representatives Massie and Lofgren’s amendment.

Sincerely,

Access

American Civil Liberties Union

American Library Association

Bill of Rights Defense Committee

Center for Democracy & Technology

CloudFlare, Inc.

Competitive Enterprise Institute

Computer & Communications Industry Association

CREDO

Demand Progress

Electronic Frontier Foundation

Fight for the Future

Floor64

Free Press Action Fund

Google

Internet Infrastructure Coalition (i2C)

Liberty Coalition

National Association of Criminal

Defense Lawyers

New America Foundation’s

Open Technology Institute

OpenTheGovernment.org

Project on Government Oversight (POGO)

Sonic.net

SpiderOak

ThoughtWorks

[1] Minimization Procedures Used By The National Security Agency In Connection With Acquisitions Of Foreign

Intelligence Information Pursuant To Section 702 Of The Foreign Intelligence Surveillance Act Of 1978, As Amended (Jan. 8, 2007), available at http://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20Connection%20with%20FISA%20SECT%20702.pdf.

[2] Letter from James Clapper, Director of National Intelligence, to Senator Wyden (Mar. 28, 2014) (on file with author), available at http://www.wyden.senate.gov/download/?id=130BFF88-A3C0-4315-A23B-C4F96C499D9D&download=1.