At a time when Americans are frustrated over legislative gridlock, Congress has outdone itself. Congressional leadership is has killed the rarest of birds: legislative reform of surveillance with overwhelming bipartisan support.
At issue is an anti-surveillance amendment that passed the House of Representatives in June by a vote of 293 to 123—an overwhelming, veto-proof majority. It was the most significant post-Snowden reform to pass either the House of Representatives or Senate. Now, after ongoing secret leadership negotiations, it’s been switched out for a replicant that does little—if anything—but restate the status quo.
The original Massie-Lofgren amendment would have instituted two of the many reforms needed to rein in dragnet surveillance. First, it would have defunded warrantless backdoor searches, which occur when the government searches already-harvested emails and other information. While the government has to do some extra work to target Americans specifically, it sweeps up vast swaths of our information through bulk (and bulky) surveillance anyway. When it searches that database for anyone communicating about, say, Osama Bin Laden, it returns the Americans’ information, including email messages themselves, with the other, non-American results. The intelligence community can retain, examine, and make use of the information in a broad variety of situations. As the Guardian reported in 2013, the Foreign Intelligence Surveillance Act Court allows the government to “[r]etain and make use of ‘inadvertently acquired’ domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.”
The amendment would also have, via defunding, stopped the government from forcing companies to insert security vulnerabilities that make surveillance easier—no matter who is doing it. The amendment was written as a defunding because it was attached to the Defense Appropriations bill—generally considered a “must-pass” piece of legislation.
Needless to say, activists were thrilled when the amendment made it through the House. Its reforms are particularly important given that the USA FREEDOM Act, another surveillance reform effort, failed to move through the Senate in November amid concerns that it didn’t do enough, sacrificed too much, and did too much. These varied disagreements show how extraordinary this amendment’s strength and success were—and why it’s so disturbing that secret dealing by leadership in Congress ripped the reform out of existence.
Here’s why the amendment died: The so-called CRomnibus, a comprehensive bill to fund the government, supplants other spending legislation, including the Defense Appropriations bill to which this amendment was attached. And the CRomnibus did not contain amendment. Reps. Jim Sensenbrenner, Thomas Massie, and Zoe Lofgren put out a statement Wednesday in response to the exclusion from the CRomnibus, saying, “Thus far, Congress has failed to rein in the Administration’s surveillance authorities and protect Americans’ civil liberties. Nevertheless, the Massie-Sensenbrenner-Lofgren amendment established an important record in the full House of Representatives—an overwhelming majority will no longer tolerate the status quo.”
The three representatives also introduced a bill last week that would accomplish some of what the amendment did, by prohibiting agencies from “mandat[ing]” companies change their products’ security for the purposes of making surveillance easier (outside of the Communications Assistance for Law Enforcement Act). That would be a good step for all of our privacy (and the tech industry’s bottom line), but it doesn’t include the ban on backdoor searches of Americans’ information, and it’s unclear whether it applies to non-mandatory agreements to weaken security, which we’ve seen before.
So why wouldn’t such a popular measure automatically be included? Omnibus funding bills are negotiated by leadership and tend to be later-stage efforts to merge all of the various funding bills and their compromises, resulting in something both parties can whip up support for. In doing so, they save time from being lost to deliberation about each individual deal and each individual amendment. It also ensures that “poison pills,” or amendments that render a bipartisan bill unacceptable to a critical component of House members, don’t make it onto the floor. Majority and minority leadership have tremendous procedural powers in Congress, which enable them to effectively say, “It’s our way or the highway.”
Democracy-be-damned, leadership doesn’t want to enact any reform. So, even though both the Massie-Lofgren amendment and the 2015 Defense Appropriations Bill passed overwhelmingly through the House months ago, the Senate still hasn’t considered the measures, and right now it looks like this surveillance reform will never pass the finish line, even after winning the race.
All of this is reminiscent of Rep. Justin Amash’s attempt to broadly defund bulk surveillance shortly after the Snowden leaks began. That measure failed at the finish line, 205 votes to 217. That failure came thanks almost entirely to aggressive, united lobbying by House Speaker John Boehner and House Minority Leader Nancy Pelosi.
The Massie-Lofgren amendment also couldn’t be added to the CRomnibus because leadership’s procedural power also allows them to agree to bring bills up for consideration under closed rule, which prevents members from proposing amendments on the floor. Considering how contentious funding the government can be, that’s the expected path for the CRomnibus.
The moral of the story? Surveillance reformers can’t succeed even when they have enough allies inside Congress to override the president, bolstered by allies on the outside from across the political spectrum. Not as long as party leadership remains the same.