House Takes Major Step to End NSA Mass Surveillance

The House Judiciary passed an amended version of the USA Freedom Act on Wednesday.

National Journal
Dustin Volz
May 7, 2014, 12:29 p.m.

A House com­mit­tee on Wed­nes­day passed a bill that seeks to ef­fect­ively end one of the Na­tion­al Se­cur­ity Agency’s most con­tro­ver­sial spy pro­grams.

With un­an­im­ous sup­port, the House Ju­di­ciary Com­mit­tee ap­proved 32-0 an amended ver­sion of the USA Free­dom Act, which would lim­it the gov­ern­ment’s abil­ity to col­lect bulk metadata of Amer­ic­ans’ phone re­cords.

Among its sev­er­al re­form pro­vi­sions, the Free­dom Act would move the stor­age of phone metadata — the num­bers and call dur­a­tions but not the con­tents of a call — out of the gov­ern­ment and in­to the hands of the phone com­pan­ies. The bill, au­thored by Re­pub­lic­an Rep. Jim Sensen­bren­ner of Wis­con­sin, only al­lows data col­lec­tion for coun­terter­ror­ism pur­poses, and it re­duces from three to two the num­ber of “hops,” or de­grees of sep­ar­a­tion, away from a tar­get the NSA can jump when ana­lyz­ing com­mu­nic­a­tions.

It also would re­quire the NSA to earn ap­prov­al to search a phone num­ber from the For­eign In­tel­li­gence Sur­veil­lance Court ex­cept in emer­gency cases. A com­pet­ing bill from Reps. Mike Ro­gers and Dutch Rup­pers­ber­ger, the Re­pub­lic­an and Demo­crat­ic lead­ers of the House In­tel­li­gence Com­mit­tee re­spect­ively, would al­low the NSA to search a num­ber be­fore ju­di­cial re­view.

The USA Free­dom Act has long been cham­pioned by pri­vacy and civil-liberty ad­voc­ates, who viewed it as the best op­tion to cur­tail the NSA’s mass-sur­veil­lance pro­grams, the clas­si­fied de­tails of which were pub­licly dis­closed by Ed­ward Snowden last June.

But the amended ver­sion of the bill re­leased this week drew some cri­ti­cism from pri­vacy hard-liners, who said it had lost some of the pro­tec­tions gran­ted in the ori­gin­al.

Sev­er­al law­makers ac­know­ledged those cri­ti­cisms dur­ing de­bate. The amended bill “is a less-than-per­fect com­prom­ise, [but] it makes im­port­ant sub­stant­ive changes that will work to re­store con­fid­ence in the in­tel­li­gence com­munity,” said Rep. John Con­yers, the Ju­di­ciary pan­el’s top Demo­crat.

But pri­vacy groups and tech com­pan­ies did score some vic­tor­ies dur­ing the vote.

The com­mit­tee passed a data-re­quest trans­par­ency amend­ment in­tro­duced by Rep. Su­z­an Del­Bene that had been heav­ily pushed by tech com­pan­ies. It would co­di­fy an agree­ment those com­pan­ies have with the Justice De­part­ment that gives them more flex­ib­il­ity in how they no­ti­fy con­sumers of the kinds and amount of user data they turn over to the gov­ern­ment upon re­quest.

An amend­ment by Re­pub­lic­an Rep. Louie Gohmert that would have ad­ded cla­ri­fic­a­tion to the bill’s defin­i­tion of “clandes­tine in­tel­li­gence activ­it­ies” to spe­cify only “activ­it­ies by for­eign in­di­vidu­als, for­eign en­tit­ies or for­eign gov­ern­ments” failed after ini­tially passing.

The meas­ure ini­tially went down dur­ing a voice vote, but dur­ing a fol­low-up roll-call vote, sev­er­al law­makers, in­clud­ing Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte, switched their vote, al­low­ing the amend­ment to pass 14-11. After re­con­ven­ing from a break, however, Good­latte asked the com­mit­tee to re­con­sider the amend­ment, and it was voted down again by voice vote. Gohmert was not in the room dur­ing the fi­nal vote.

Good­latte de­fen­ded the man­euver be­cause there was “con­fu­sion” about what Gohmert’s amend­ment did.

“One of the con­cerns was an amend­ment that moves the agree­ment, the very strong bi­par­tis­an agree­ment that was made, one dir­ec­tion or the oth­er, could up­set that abil­ity to get a very strong vote out of the com­mit­tee and up­set the abil­ity to get this bill [through] the House,” Good­latte said after the vote.

Oth­er pri­vacy amend­ments pushed by Demo­crat­ic Rep. Zoe Lof­gren failed, draw­ing op­pos­i­tion from Good­latte, Sensen­bren­ner, and oth­ers who said they sym­path­ized with the is­sue but wor­ried tack­ing any­thing on could harm the bill’s chances of get­ting a vote on the House floor.

“I fear this would blow up the fast track to pas­sage,” Sensen­bren­ner said be­fore the vote on one amend­ment that would have tightened the stand­ard for data searches from “reas­on­able, ar­tic­ul­able sus­pi­cion” to “prob­able cause.”

In Janu­ary, Pres­id­ent Obama an­nounced his ad­min­is­tra­tion would re­form how the NSA col­lects and stores tele­phone data, but said he had to wait for Con­gress to send him le­gis­la­tion that re­sembled his re­quests. The ori­gin­al Free­dom Act was seen as too sweep­ing com­pared with what Obama wanted, but the amended ver­sion aligns more closely with what the ad­min­is­tra­tion is seek­ing.

On Thursday, the House In­tel­li­gence Com­mit­tee will hold a closed-door vote on its NSA re­form bill, which re­form ad­voc­ates gen­er­ally say does not go as far as the Free­dom Act to pro­tect pri­vacy. The In­tel­li­gence Com­mit­tee has ad­di­tion­ally sched­uled a vote of its own on the Free­dom Act. A com­mit­tee aide said the pan­el has the right to amend it as they see fit if it has is­sues with the ver­sion passed out of the Ju­di­ciary Com­mit­tee.

A com­pan­ion ver­sion of the ori­gin­al Free­dom Act ex­ists in the Sen­ate. That meas­ure is sponsored by Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy.

While com­mend­ing the House Ju­di­ciary’s vote, Leahy noted in a state­ment he has re­ser­va­tions about the bill be­cause it did not in­clude “im­port­ant re­forms re­lated to na­tion­al se­cur­ity let­ters, a strong spe­cial ad­voc­ate at the FISA Court, and great­er trans­par­ency.” He ad­ded that his com­mit­tee will con­sider the Free­dom Act this sum­mer.

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