Representatives Should Vote “YES” on Three Amendments to Prohibit Bulk Collection and to Protect Encryption

[UPDATE 2 – June 4, 2015: Last night the House voted 383-43 to pass the Massie amendment.]

[UPDATE JUNE 3, 2015: Last night, the Polis and
Poe-Lofgren amendments passed on voice votes.
The Massie amendment is still pending, and OTI strongly supports its
adoption.]

Today or
tomorrow, the House of Representatives is expected to vote on three amendments
to the Commerce, Justice, Science, and
Related Agencies Appropriations Act for 2016 (H.R. 2578), all of which New America’s Open Technology
Institute (OTI) strongly support. The amendments are as follows:

Representative Polis (D, CO-2) Amendment: This amendment would prohibit the use of any funds appropriated under the Act for bulk
collection of Americans’ records under the Controlled Substances Abuse Act.
This amendment is in response to revelations that for decades
the Drug Enforcement Agency used administrative subpoenas issued under that law
to engage in the bulk collection of records about Americans’ international
calls, using the same overbroad interpretation of the term “relevance” that
became the basis for the NSA’s bulk collection under Patriot Act Section 215.

This
amendment is a natural complement to the USA FREEDOM Act, which will similarly
prevent bulk collection under the government’s foreign intelligence
surveillance authorities and which Congress overwhelmingly passed. It is the
next, most obvious step toward achieving a comprehensive ban on domestic bulk collection,
and OTI strongly supports it.

Representatives
Poe (R, TX-2) and Lofgren (D, CA-19) Amendment: This amendment would prohibit the
Department of Justice or the Federal Bureau of Investigation (FBI) from using
any funds appropriated under the Act to request or require that a company
weaken the security of their products or services to enable surveillance,
unless that product or service is already required to provide wiretapping
capability under the Communications Assistance for Law Enforcement Act (CALEA).
This amendment comes after nearly a year of calls from the FBI that companies
deliberately insert vulnerabilities into their encryption and other security
products in order to facilitate surveillance of their users’ communications.

Representative
Massie (R, KY-4) Amendment: This amendment would prohibit the
National Institute of Standards and Technology from using any funds
appropriated under the Act to coordinate or consult with the National Security
Agency or the Central Intelligence Agency in order to intentionally set weak
cryptographic standards for any reason, including to enable surveillance. This
amendment responds to revelations in 2013 that the NSA deliberately
weakened at least one of NIST’s encryption standards during a mandatory
consultation.

OTI strongly supports these two amendments as it has supported similar proposals in the past. OTI
has long opposed the insertion of security vulnerabilities into computer
products and communications services for surveillance purposes, because such
“backdoors” are harmful to cybersecurity, innovation, the competiveness of the
American tech industry, and privacy rights. In April, OTI Policy Director Kevin
Bankston testified before the House
Government Oversight and Reform Committee’s Subcommittee on
Information Technology, and argued against requirements that companies
build surveillance backdoors into their systems for the government. And just
last month OTI and nearly 150
other privacy and human rights organizations, technology companies, trade
associations, and individual security and policy experts sent a letter to President Obama
opposing any new
mandates for backdoors into encrypted products and services. Our position is
further supported by the United Nations Special Rapporteur for Freedom of
Expression and Opinion, who just last week issued a new report concluding that strong encryption
is essential to freedom of expression and urging governments to support rather than
undermine the availability of encrypted products and services without
backdoors.

OTI urges
members of the House of Representatives to vote “Yes” on these three
amendments.