POGO Supports Amendment to End Warrantless Searches of Emails
To:
- The Honorable John Boehner
- Speaker
- United States House of Representatives
- H-232 The Capitol
- Washington, DC 20515
- The Honorable Kevin McCarthy
- Majority Whip
- United States House of Representatives
- H-107, The Capitol
- Washington, DC 20515
- The Honorable Hal Rogers
- Chairman
- House Appropriations Committee
- 2406 Rayburn House Office Building
- Washington, DC 20515
- The Honorable Rodney Frelinghuysen Chairman
- Defense Appropriations Subcommittee
- 2306 Rayburn House Office Building
- Washington, D.C. 20515
- The Honorable Nancy Pelosi
- Democratic Leader
- United States House of Representatives
- H-204, US Capitol
- Washington, DC 20515
- The Honorable Steny Hoyer
- Democratic Whip
- United States House of Representatives
- 1705 Longworth House Office Building
- Washington, DC 20515
- The Honorable Nita Lowey
- Ranking Member
- House Appropriations Committee
- 2365 Rayburn House Office Building
- Washington, D.C. 20515
- The Honorable Pete Visclosky
- Ranking Member
- Defense Appropriations Subcommittee
- 2256 Rayburn House Office Building
- Washington, D.C. 20515
- 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.
Signed by:
- 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
- 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
- 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.
