The House Judiciary Committee met yesterday in a hearing to discuss, amend and approve the USA FREEDOM Act, which aims to rein in the National Security Agency’s surveillance powers and place new limits on authority granted under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA).
In addition to recent markups to the proposed legislation, which passed on a voice vote, yesterday’s nearly three-hour hearing saw the approval of two amendments and the rejection of an additional six. In the end, the revised FREEDOM Act was approved unanimously by the committee and will now move on the the House for further revisions and an eventual vote.
Generally speaking, the bill aims to:
- protect Americans’ privacy by prohibiting bulk data collection and by limiting authority granted under the PATRIOT Act, the FISA Pen Register/Trap and Trace Law, and National Security Letter statutes;
- ensure national security officials have the necessary investigative information to keep Americans safe while also ensuring they collect and store that information responsibly;
- codify procedures to minimize collection and retention and prohibit the dissemination of data belonging to U.S. citizens;
- and increase oversight with experts to review FISA court decisions, which the Attorney General can then work to declassify when appropriate and publish on a yearly basis.
At times, it seemed as if the committee chair and a majority of its members had already settled on the contents of the bill. Nearly every amendment proposition was followed by multiple members speaking in opposition, eventually rejecting the proposal under a voiced vote. The oft-repeated refrain from Committee Chair Rep. Bob Goodlatte (R-VA) was that the bill was passable in its current form and that substantial changes could render it dead on arrival for a vote in the House.
In the most dramatic sequence of the hearing, Rep. Louie Gohmert (R-TX) proposed removing the “clandestine intelligence activities” clause from sections of the bill pertaining to pen register trap and trace approval, FISA business record collection, and National Security Letter (NSL) issuance. His objection to the clause is that it is overly vague and allows too much room for government officials to investigate U.S. citizens. To remedy that, he proposed replacing “clandestine intelligence activities” with “clandestine intelligence activities by foreign individuals, foreign entities, or foreign governments.”
Several members of the committee voiced their immediate opposition to the amendment. Rep. Zoe Lofgren (D-CA) and and Rep. Ted Poe (R-TX), however, spoke up in support. Rep. Goodlatte called for a voice vote and judged that the nays out numbered the ayes, declaring the amendment rejected. Rep. Gohmert then requested a roll call vote. During the vote several committee members re-entered the hearing. Once the roll-call appeared to be complete, a number of the committee members – including Goodlatte – changed their nays to ayes, and the amendment passed. There was later a motion to reconsider in which the amendment again passed – this time by a voice vote.
Rep. Lofgren submitted several amendments, nearly all of which were audibly rejected under the majority assumption that they would either render the agreeable bill unable to pass or unnecessarily burden law enforcement or defense officials in the process of carrying out their duties.
Among Lofgren’s failed revisions was an attempt to clarify language in the bill pertaining to the circumstances under which the government can use FISA to compel businesses to hand over customer records. Lofgren sought to increase the burden of proof on the government, requiring that they show probable cause in order to obtain such records.
In another instance, Lofgren attempted formally end a practice known as reverse targeting, a sort of loophole through which law enforcement is known to target the collected communications data of foreign nationals with the actual intention of gathering data on a U.S. person. The committee claims the bill already bans this practice.
In a related effort, Lofgren attempted to bar the government’s ability to intentionally acquire any information belonging to a U.S. citizen where the sender or recipient of that information is not the target of an authorized investigation. She also proposed an amendment that would narrow the definition of foreign intelligence information.
Considering this litany of failed attempts, it should come as no surprise that Lofgren’s district includes Silicon Valley – the home of many of the businesses on the receiving end of the government’s requests for user data.
The Electronic Frontier Foundation was fast to praise the bill as a strong first step but is also urging the House to make further revisions.
“We’re pleased by Congress’ strong step toward ending bulk surveillance of phone records of Americans,” wrote Kurt Opsahl, EFF deputy general counsel. “This bill is a good start toward reforming an out-of-control surveillance state, and we urge members of Congress to support it as the bill moves forward through the legislative process.”
The EFF also expresses concerns about the Foreign Intelligence Surveillance Court amici in that review parties would be assigned at the discretion of the court. The EFF would prefer an independent privacy advocate panel with the authority to review any FISC decision.
The digital rights group is also concerned that the bill fails to address collection powers authorized under section 702 of the FISA Amendments Act.
“The bill fails to fix the ‘backdoor loophole,’ in which the NSA interprets the law to allow searches of the data collected under Section 702 for the purpose of finding communications of a United States person. Section 702 authorities need to be sharply limited to ensure that collection is only possible for communications to and from a designated target, not merely those who mention a target in a communication.”
The EFF would also like to see the bill address the privacy rights on non-U.S. citizens and implement stronger transparency measures.
“This legislation should provide stronger transparency provisions to ensure that users know, with as much granularity as possible, how and when the government issues orders for user data and how many accounts are affected,” Opsahl wrote.
Another criticism of the bill is that it actually extends the sunset or reauthorization date of the PATRIOT Act from June 2015 to December 2017.
“Today’s strong, bipartisan vote by the House Judiciary Committee takes us one step closer to ending bulk collection once and for all and safeguards Americans’ civil liberties as our intelligence community keeps us safe from foreign enemies who wish us harm,” the committee wrote in a joint statement. “For nearly a year, the House Judiciary Committee has examined our nation’s intelligence-gathering programs operated under FISA and has worked together across party lines and with the Obama Administration to reach this bipartisan solution that includes real protections for Americans’ civil liberties, robust oversight, and additional transparency.”