After hurdling procedural barriers, a congressional attempt to protect privacy and encryption failed on the House floor yesterday, falling short of a majority by a mere 24 votes.
Two years ago, the House stood united across party lines, voting by a remarkable margin of 293–123 to support the same measures, which would enhance security and privacy by limiting the powers of intelligence agencies to conduct warrantless backdoor searches targeting Americans, and to undermine encryption standards and devices.
This week, the intelligence community broke that consensus by inappropriately politicizing the recent tragedy in Orlando. Before Thursday’s vote, the chair of the House Intelligence Committee, Rep. Devin Nunes (R-CA), circulated a letter falsely claiming that:
If this amendment were enacted, the Intelligence Community would not be able to look through information lawfully collected under FISA Section 702 to see if…the Orlando nightclub attacker was in contact with any terrorist groups outside the United States.
These claims were downright disingenuous.
As members of the intelligence committee well know, the government will have no problem securing warrants to search the Orlando attacker’s online communications. Warrants are not difficult to secure when appropriate. The only thing a warrant requirement would do is prevent the government from abusing its powers, as it repeatedly has in the past.
The clever misrepresentations about the proposed amendment, and unproven and ultimately spurious claims that it would undermine national security, prompted efforts to correct the debate and inform policymakers of the truth, leading dozens of members of Congress to switch sides in both directions. Ultimately, the House chose to reverse two previous votes overwhelmingly supporting precisely the same amendment.
We are greatly disappointed that the House chose to abandon its prior votes defending the rights of constituents, and particularly in those members who accepted the canard that simply requiring the government to obtain a judicial warrant before searching Section 702 intelligence databases would hinder investigations.
Observers who share our concerns have opportunities to impact the debate going forward. First, contact your federal representative to share your views, especially if yours was one of the dozens who shifted their position.
But don’t stop there: August will present a key point in time when—visiting their districts just a few months before an election with likely high turnout driven by a presidential election cycle—members of Congress will be at their most politically vulnerable, exposed, and therefore receptive to grassroots concerns.
If you’d like to take advantage of the opportunity to share your views with your representatives in a forum more influential than a phone call, confirm how your representative voted, recruit a handful of friends to form a local group, and join the Electronic Frontier Alliance.