WASHINGTON (June 22, 2016) – Security hawks in Congress have seized on fear generated by the recent shooting tragedy in Orlando to attack privacy and beef up the surveillance state.
Last Thursday, the U.S. House blocked an amendment to the 2017 National Defense Authorization Act that would have barred the government from forcing companies to weaken encryption for law enforcement.
The House killed the amendment by a 222-198 vote. Similar provisions passed the House by wide margins in both 2014 and 2015, only to be stripped by the Senate.
Rep. Thomas Massie (R-Ky.) cosponsored the amendment along with Rep. Zoe Lofgren (D-Calif.) Massie said opponents of the amendment used fear-tactics based on the Orlando tragedy to defeat the measure.
“It’s unfortunate my colleagues would take advantage of that situation.”
This encryption issue bubbled to the surface in the wake of the San Bernardino shooting last year. The FBI went to court hoping to force Apple to create a “back door” into the iPhone. The feds dropped the case after an unnamed third party helped them unlock the phone.
Privacy advocates argue creating back doors that bypass encryption makes devices generally more vulnerable to hacking and fundamentally less secure. It’s a little like forcing a lock company to create a key that opens every one of its locks. Once it exists, it becomes virtually impossible to control who has access to such a key.
“Our government should strengthen the technology, not take advantage of it,” Lofgren said.
The proposed amendment would not have blocked law enforcement agencies from accessing information with a warrant. It would have merely prevented the government from commandeering private companies or individuals and forcing the work for them. Again, just because police have a warrant doesn’t mean they can command a lock company to come open a door. The lock is the police’s problem.
Meanwhile, the Senate launched its own effort to expand the federal surveillance state.
On Monday, Sen. Mitch McConnell set up a vote on an amendment to a criminal justice appropriations bill that would expand the FBI’s authority to use unconstitutional national security letters (NSLs).
Federal law enforcement agencies such as the FBI issue these administrative subpoenas with no judicial oversight to gather information for “national security purposes.” NSLs require the entity served to provide any information requested and they usually include gag orders prohibiting the recipient from revealing any information about the order. They can even prohibit the recipient from consulting with an attorney. Last month, a federal court ruled NSLs constitutional, an poignant reminder not to count on part of the federal government to protect your rights from the federal government.
The proposed amendment would allow the FBI to use these secretive surveillance orders without a warrant to gather email metadata and some browsing history information. Sen. John McCain sponsored the amendment.
“In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations,” he said in a statement.
In other words, “I’m going to trample on the Constitution and claim it will protect you from the bad guys.”
We’ve seen this scenario play out dozens of times. In the wake of 9/11, Congress pushed through the Patriot Act. Fifteen years later, we continue contend with a bloated, unconstitutional surveillance state that spies on virtually everybody in the world.
Ironically, the Patriot Act contained countless provisions proponents of the surveillance state had been trying unsuccessfully to get passed for years. But the trauma of 9/11 swept away all resistance and concern about the long-term ramifications of such sweeping government authority.
Politicians predictably use fear generated by tragedies to expand government power and breach constitutional limits meant to protect fundamental rights. Long after the threat fades, the laws spawned by the “emergency” remain in place.
It’s time we stop letting politicians shoot up Big Brother with steroids every time there is a tragedy.
Photo by urbansnaps – kennymc via Flickr