[Infowarrior] - House defeats privacy measure in wake of Orlando shootings

[Richard Forno]

House defeats privacy measure in wake of Orlando shootings

By Mason Adams

http://www.politico.com/story/2016/06/house-encryption-amendment-blocked-224444

The House on Thursday blocked an amendment that opponents said would have taken away critical intelligence tools just four days after the worst mass shooting in U.S. history.

The 198-222 vote is a blow for privacy advocates who have spent years building support for the amendment, which would have barred the government from forcing companies to weaken their encryption for law enforcement. The provision passed the House twice in 2014 and 2015 by wide margins, before being stripped each time during conferences with the Senate.

But Sunday’s deadly assault in Orlando, in which suspected Islamic State supporter Omar Mateen shot and killed 49 people at a gay nightclub, caused a drastic erosion in support for the language. Opponents cited the attack as the main reason Congress couldn’t approve the amendment.

“This amendment prohibits the government from searching data already in its possession collected lawfully … to determine whether Omar Mateen was in contact [with terrorists overseas],” said House Judiciary Committee Chairman Bob Goodlatte (R-Va.) during the extended debate over the fiscal 2017 defense appropriations bill.

Investigators have said they’re trying to determine whether Mateen communicated with any terrorist groups at home or abroad — a task that would be made more difficult if he used encryption to shield data on his phone or computer.

Privacy advocates accused Goodlatte and other detractors of using “fear tactics” to reduce support for what has been a widely supported House amendment for two years running.

“It’s unfortunate my colleagues would take advantage of that situation,” said Rep. Thomas Massie (R-Ky.), who co-sponsored the amendment with Rep. Zoe Lofgren (D-Calif.).

The language “does not take any tools away from those that want to investigate what happened in Orlando,” Massie insisted.

Advocates argue that the provision merely prevents the NSA or the CIA from requiring anyone to alter their products to allow digital snooping. They say this would preserve the encryption that protects the nation’s power grid, air traffic control system and all smartphones.

“Our government should strengthen the technology,” Lofgren said, “not take advantage of it.”

“The Massie-Lofgren amendment will make America safer,” she added.

But national security-focused lawmakers worry that fully encrypted devices, such as the latest iPhones, and a growing array of encrypted apps are preventing authorities from reading digital communications even when they have a lawfully issued warrant. The dispute came to the fore following December’s mass shooting in San Bernardino, Calif., when the FBI took Apple to court in an attempt to force the tech giant to help the Bureau crack into an iPhone used by shooter Syed Rizwan Farook.

The Justice Department dropped the San Bernardino case after the FBI said an unidentified third party helped it unlock Farook’s phone, leaving the larger legal question unresolved. The Manhattan district attorney’s office alone has said it has more than 270 iPhones that it’s been unable to crack.

“Sunday’s deadly attack proves once again that the terror threat has not dissipated,” Goodlatte said. “Now is not the time to block a critical investigative tool.”

Thursday’s vote represents a shift in congressional priorities since former government contractor Edward Snowden in 2013 revealed the extent of the government’s clandestine surveillance apparatus.

In the wake of those disclosures, liberal Democrats and libertarian Republicans came together to press for surveillance reform. Eventually, the bipartisan coalition pushed through the USA Freedom Act, the first major rollback of the NSA’s spying authorities in a generation.

The House also got the Massie-Lofgren amendment approved 293-123 in 2014 and 255-174 the next year as part of two annual spending bills.

But following major terror attacks both at home — in San Bernardino and Orlando — and abroad — in Paris and Brussels — hawkish lawmakers have moved to retain or expand government surveillance authorities.

Numerous hawkish lawmakers have introduced bills to either delay surveillance reforms or strengthen the government’s ability to collect data. A widely supported email privacy bill — which would require law enforcement to seek a warrant before accessing stored email — is even being held up in the Senate over an amendment that would let the FBI use national security letters to obtain email and Internet metadata.

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