Usually, a surprising late-night vote in the House is bad news, but passage of the Massie-Lofgren amendment was a pleasant surprise: It would use the power of the purse to block the National Security Agency’s warrantless dragnet spying on Americans’ electronic communications, as well as halt the agency’s efforts to cajole hardware makers into installing so-called back doors for federal snooping convenience, providing a useful stopgap measure while the House and the Senate attempt to work out a package of meaningful NSA and surveillance reforms.
Keep in mind what the NSA is up to. This goes well beyond a sniffer program scanning Karachi-bound text messages for “Death to the Great Satan! Allahu Akbar!” The NSA has been intercepting laptop computers being shipped to customers in order to install software bugs in them, redirecting Web traffic to install malware on computers, installing agents in video games, and generally behaving like an implausible villain in a Robert Ludlum novel. It is using the flimsiest rationales to extend its surveillance to domestic targets. The toothless USA Freedom Bill passed by the House last month was intended to curtail some of this, but would have relatively little practical effect even if it were to become law, its enforcement protocols being remarkably loosey-goosey. The bipartisan amendment put forth by Kentucky’s Thomas Massie (R.) and California’s Zoe Lofgren (D.) passed 293 to 123, and would impose funding restrictions as well as implement a specific ban on any agency effort “to mandate or request that a person redesign its product or service to facilitate” surveillance.
Representative Massie says that the surveillance issue comes up at practically every town hall he conducts. “People are tired of being spied on,” he says.
There have been several legislative efforts to bring the domestic-spying apparatus under control, and all of them have failed. The FISA Amendments Act, for example, contains a number of provisions intended to protect U.S. citizens and legal residents from surveillance under what is, after all, the Foreign Intelligence Surveillance Act, but the evidence, including a heavily redacted FISA court opinion on the subject, suggests very strongly that federal authorities are operating as though effectively unbound by that law. Given that cash is fungible and that there is a great deal of it floating around these agencies, mere financial restraints may not be enough to do the job, but they would represent a step in the right direction.
“We passed the Freedom Act about a month ago here in the House,” Representative Massie says, “but the bill got watered down significantly in committee. Then, when it came out of committee, it went behind closed doors in negotiations with the intelligence community, and when it came out to the House we weren’t allowed to offer amendments. Roughly half of the cosponsors dropped our support, because we didn’t even recognize the bill at that point.”
Representative Massie concedes that further reform is needed, and predicts that his amendment will not make it into law, given that the defense-appropriations bill is likely to be superseded by an omnibus spending bill down the road.
The good news is that support for reform is apparently deep and bipartisan. “The thing that surprised me last night was we got a majority of Republicans and a majority of Democrats,” Representative Massie says. “I expected a majority of Democrats, but wasn’t sure a majority of Republicans would support it. The opposition came from the intelligence and judiciary committees, which have jurisdiction over this. The leader and the whip were also against it. But the good news is that the whip-elect [Steve Scalise of Lousiana] and the conference chair [Cathy McMorris Rodgers of Washington] did vote for it. Nancy Pelosi voted for it as well.”