Surveillance reform measure blocked in the wake of Orlando killings

The measure was proposed by Congressman Thomas Massie, a Republican from Kentucky, and Congresswoman Zoe Lofrgren, a Democrat from California, as as an amendment to the Department of Defense Appropriations Act.

It would prevent warrantless searches by law enforcement of information on Americans from a foreign intelligence communications database and prohibit with some exceptions the National Security Agency and the Central Intelligence Agency from using any funds appropriated under the Act to require that companies weaken the security of their products or services to enable surveillance of users.

The amendments had earlier been passed in 2014 and 2015 but were stripped from the defense appropriations bill before it reached the President. This year its timing seems to have been its biggest handicap, coming a few days after the killings at the Orlando nightclub.

“With Orlando fresh in everyone’s mind, members of Congress appear to be voting based on fear rather than on reason,” wrote Kevin Bankston, director of New America’s Open Technology Institute. He added that there is no reason to think that mandating backdoors into American companies’ encrypted products or allowing warrantless searches of Americans’ private data would have prevented the tragedy, a view widely held by many privacy advocates.

In the event, the amendment had on Thursday 198 backers with 222 opposing and 14 not voting, according to house records.

Earlier, Devin Nunes, a Republican from California and chairman of the House Permanent Select Committee on Intelligence and Lynn Westmoreland, a Republican from Georgia who is chairman of the Subcommittee of the NSA and Cybersecurity, had written in a letter to other representatives that the proposed reforms would handicap investigations by the Federal Bureau of Investigation into events like the tragedy in Orlando, the Intercept reported.

Section 702 of the Foreign Intelligence Surveillance Act allows the NSA to mop up both content and metadata of email and phone communications of non-US persons located abroad, but in the course of the collection, data of U.S. citizens is also swept up and can be accessed without warrant, in a practice referred to as “backdoor search.”

Besides trying to block funds for the warrantless access to the data on Americans collected under Section 702, the amendment proposed by Massie and Lofgren also addressed the issue of whether companies can be asked to weaken the encryption in their products and services,  which has come to the fore recently as the government complains that the encryption could slow down and even stymie its investigations into terror threats.