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
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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