No, it can definitely do that, but more importantly it can simply change its mind, and it can do that in subtler ways than by making direct references to Wyden's bill, "notwithstanding" &c &c.
What further restriction were you talking about? Is it judicial precedent you're referring to, or legislative precedent? I believe there is at least one case where courts ruled that the government must fulfill the terms of a contract it made previously, but that's different than statutes.
The advantage is value language in new laws rarely trumps specific language in older laws. So, when or if the law is changed it becomes more obvious that agencies can add backdoors.
I do not believe that it's the case that there's a "most specific wins" in statutory interpretation. A broad exemption in a later bill overrides all the previous statutes it implicates.
In fact: if that's the case, and I think it is, then bills like this are deceptive: they make people like you believe you can grep the Congressional Record for references to Wyden's bill and tell if there's new statutory authority for backdoors.
One of the HN legals (DannyBee! Rayiner! Tzs! Pdabbadabba!) can probably clear this up.
There's a few canons of construction in play in this hypo.
1) Prefer a construction that gives effect to both provisions.
2) If conflict is inevitable: a) repeals by implication are disfavored; b) specific provisions govern general ones, regardless of when enacted.
3) The clear intent of Congress controls.
Say Congress says: agencies can't require backdoors.
Later, it says: NSA can require backdoors. This is both more recent, and more specific, and controls.
Or, later it says: NSA can place requirements on products necessary for security. This is later, but more general, so the earlier act probably controls.
Or, later it says: NSA can place whatever requirements on products it wants, notwithstanding any other law. Here, the clear intent is to give NSA the authority to do whatever it wants regardless of what prior law says, so the intent controls.
Unless you're a devout Scalia-ite, all of this will be subject to second-guessing on the basis of the legislative history or other indicators of Congressional intent. At the end of the day, canons of construction are useful, but it had better not be the only thing you have in your pocket.
Thanks. It's the "notwithstanding" that sticks in my head, because that exact construction has come up in discussions --- I think here! --- in the past.
The "notwithstanding" won't necessarily read like "notwithstanding previous bills about backdoors", either.
The override won't need to be obvious to be effective, is the point I'm trying to make.
Grep is clearly not enough, but sometimes cases are decided by extreme edge case interpretations as there is no clear intent. In which case a very specific law generally beats a vague interpretation if you squint really hard, but not clear if sweeping language.
So, agency X can do anything wins. Agency X can make reasonable precautions does not because a prior law defines such behavior as unreasonable.
Edit: My point being a law that says agency X can do anything raises plenty of red flags where 'make reasonable precautions' does not.
PS: Though, that's just my understanding I would love to hear a better analysis.
We can probably find a bunch of examples in real statutes to get a sense of exactly how subtle the override could be.
I don't think Wyden's bill is likely to be helpful in detecting new authority to demand backdoors. We'll have to be exactly as vigilant after it passes.
Sure, but "notwithstanding" is exactly the type of language that should raise eyebrows. It's like seeing a goto in code. Sure it can be used to obscure things, and there are plenty of great examples of this, but it's also a big sign that saying "pay attention to me".
There is indeed a canon of interpretation which upholds a prior specific rule over a later in time general rule which does not specifically repeal the earlier one, and isn't directly conflicting. In that case, the general rule will be read if possible to avoid the earlier rule. Legislatures need to explicitly repeal something if it could be an issue.
