Two House committees will vote this week on their own versions of legislation that curtails the government’s surveillance powers, marking the first serious movement on spy reform from Congress in months.
But dueling narratives have also emerged from the House Judiciary and Intelligence committees alongside the competing bills. These underscore the divide between lawmakers more supportive of broad surveillance reform and those more concerned that national security could be undermined.
According to the Intelligence panel, the two bills are quickly uniting on a happy middle ground, one that will make Speaker John Boehner’s choice as to which bill to bring to the floor a relatively easy one. The Judiciary panel’s newly amended USA Freedom Act has swung sharply in a direction “where we and the White House are on this,” an Intelligence staffer said.
“I really do feel we’re very close to a deal that everybody will feel comfortable with,” Intelligence Chairman Mike Rogers said late Tuesday. “The bills have moved dramatically.”
But while Intelligence lawmakers and staffers are insisting a grand consensus may be emerging, aides to Judiciary members struck a different chord. Multiple Judiciary staffers accused the rival panel of trying to spin a copacetic narrative to distract from the reality that the two bills are still markedly different.
“If they were so close, why would there be competing bills?” an aide to a Judiciary Democrat asked.
An aide to a Judiciary Republican added: “We can say with a straight face that our bill ends bulk collection. House Intel cannot.”
Complicating matters further, the Intelligence panel has scheduled a vote on the Freedom Act on Thursday after it votes on its own bill, a day after Judiciary’s vote.
To be sure, the bills offered by both panels do share some common ground, and the latest version of the Freedom Act does align it more closely with what the Intelligence panel and President Obama want. (The proposed Freedom Act changes have led some in the privacy community to newly christen it the “Freedumb Act.”)
Both measures 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. Both would also generally create more transparency and accountability checks on the Foreign Intelligence Surveillance Court, which gives the National Security Agency its authority to conduct data storage.
But several key differences remain. For one, the Intelligence Committee’s FISA Transparency and Modernization Act would allow the NSA to seize phone records without prior approval from the FISA Court — something that even Obama’s proposed reforms do not seek. The Freedom Act would require court approval before each search of phone records.
And the Freedom Act more strictly defines who can be targeted under “bulk collection,” though ambiguity in the language has privacy advocates wondering how certain definitions could be interpreted. It also would only allow data collection for counterterrorism purposes, while the Intelligence bill would expand that current standard to include other kinds of national security threats, such as proliferation of weapons of mass destruction.
What’s more, amendments likely to be offered during the Freedom Act’s Wednesday markup could widen the gap between the two bills even more. One plan would allow tech companies to disclose more information about the data requests they receive from the government. Democratic Reps. Suzan DelBene and Zoe Lofgren, as well as Wisconsin Republican and Freedom Act author Jim Sensenbrenner, are interested in adding a transparency provision that was in the original bill’s language.
Overall, privacy and civil-liberties groups still favor the Freedom Act, even in its current state.
“The details still need to be hammered out, but the bill is certainly better than the one that the House Intelligence Committee will be considering this week, which is a nonstarter,” Laura Murphy, director of the American Civil Liberties Union’s legislative office in Washington, said in a statement. “The American people must insist that Congress vote on real reform, not window dressing.”
The unusual situation unfolding this week — two committees voting on competing bills just a day apart — stems from a territorial feud that began in March, when House leadership gave Rogers’s committee primary jurisdiction over his bill instead of the Judiciary panel, which said it normally calls the shots on matters dealing with the intelligence community’s legal authority. One Judiciary staffer said at the time that its members were “outraged.”
The House Intelligence leaders may want to undersell legislative differences in the bills because of their reputation as long-standing defenders of the NSA. Chairman Rogers said he has been in talks with Judiciary Chairman Bob Goodlatte, Sensenbrenner, and the White House about moving forward with one bill that “represents everyone’s concerns.”
“Our bill as introduced already strengthens privacy protections and improves transparency while maintaining an important capability needed to keep our country, and our allies, safe,” Rep. Dutch Ruppersberger, the Intelligence panel’s top Democrat, said in a statement. “After continuing our close consultations with the administration, privacy groups, industry leaders, and our colleagues in the House and Senate, I am confident that our mark-up will advance these goals even further.”
House leadership, for the time being, is staying mum on the byzantine battle. “At this point, we’re just monitoring the committee process,” a spokesman for Boehner said.
The Judiciary’s Freedom Act currently boasts 143 cosponsors and was introduced in October. The FISA Transparency and Modernization Act was introduced by Rogers and Ruppersberger in March and has 13 cosponsors.
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