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

Blog Post
June 2, 2015

[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.