House to Advance Bill to End Mass NSA Surveillance

The USA Freedom Act, with more than 140 cosponsors, will get a vote in the House Judiciary Committee on Wednesday.

Activists protest the surveillance of U.S. citizens by the NSA outside the Justice Department where President Barack Obama gave a major speech on reforming the NSA January 17, 2014.
National Journal
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Dustin Volz
May 5, 2014, 9:17 a.m.

A bill that would ef­fect­ively end one of the Na­tion­al Se­cur­ity Agency’s most con­tro­ver­sial spy pro­grams is fi­nally get­ting its day in con­gres­sion­al court.

The House Ju­di­ciary Com­mit­tee will hold a markup of an amended ver­sion of the USA Free­dom Act on Wed­nes­day, a sur­pris­ing and sud­den move that would es­sen­tially nul­li­fy the gov­ern­ment’s abil­ity to col­lect bulk metadata of Amer­ic­ans’ phone re­cords.

The manuever may also be a counter to plans the House In­tel­li­gence Com­mit­tee has to push for­ward a com­pet­ing bill that pri­vacy ad­voc­ates say would not go far enough to curb the gov­ern­ment’s sweep­ing sur­veil­lance pro­grams.

In­deed, just hours after the Free­dom Act earned a markup date, the In­tel­li­gence Com­mit­tee an­nounced it, too, would move for­ward with a markup of its own NSA bill — the FISA Trans­par­ency and Mod­ern­iz­a­tion Act — on Thursday.

The more ag­gress­ive Free­dom Act is sponsored by Rep. Jim Sensen­bren­ner, the one-time mas­ter­mind be­hind the post-9/11 Pat­ri­ot Act, from which both the Obama and Bush ad­min­is­tra­tions have de­rived much of the leg­al au­thor­ity for their sur­veil­lance pro­grams. Sensen­bren­ner, a Wis­con­sin Re­pub­lic­an, has vo­cally con­demned NSA spy­ing since Ed­ward Snowden’s leaks sur­faced last June. The bill has long been sup­por­ted by pri­vacy and civil-liber­ties groups who view it as the best le­gis­lat­ive re­form pack­age in Con­gress.

A man­ager’s amend­ment has been pos­ted to House Ju­di­ciary’s web­site that a source close to the ne­go­ti­ations said is a “com­prom­ise” on the Free­dom Act. The “bi­par­tis­an sub­sti­tute” from House Ju­di­ciary Chair­man Bob Good­latte; Rep. John Con­yers, the pan­el’s top Demo­crat; and oth­ers would pro­hib­it the bulk col­lec­tion of data un­der Sec­tion 215 of the Pat­ri­ot Act but keep in­tact the “rel­ev­ancy” stand­ard for col­lec­tion au­thor­ity. The ori­gin­al Free­dom Act had sought to com­pletely re­write the rel­ev­ancy stand­ard.

But the bill does grant the gov­ern­ment “emer­gency au­thor­ity” to use Sec­tion 215 for “tan­gible things.”

“The at­tor­ney gen­er­al may au­thor­ize the emer­gency pro­duc­tion of tan­gible things, provided that such an ap­plic­a­tion is presen­ted to the court with­in sev­en days,” a sec­tion-by-sec­tion break­down of the amend­ment reads. “If the court denies an emer­gency ap­plic­a­tion, the gov­ern­ment may not use any of the in­form­a­tion ob­tained un­der the emer­gency au­thor­ity ex­cept in in­stances of a threat of death or ser­i­ous bod­ily harm.”

In ad­di­tion, the com­prom­ise lan­guage would ad­opt new stand­ards for na­tion­al se­cur­ity let­ters, which are used by the FBI, and make the For­eign In­tel­li­gence Sur­veil­lance Court more trans­par­ent. The court, which over­sees the NSA’s spy­ing activ­it­ies, has been cri­ti­cized for not be­ing a ro­bust check against the agency.

The bill would also provide com­pan­ies that give the gov­ern­ment ac­cess to its stored metadata some li­ab­il­ity pro­tec­tion and al­low them to seek com­pens­a­tion for com­ply­ing.

The swift move fol­lows a jur­is­dic­tion­al squabble last month between the House Ju­di­ciary and House In­tel­li­gence com­mit­tees. Some Ju­di­ciary mem­bers, who are among the most vo­cal NSA crit­ics in Con­gress, said they were be­ing in­ten­tion­ally side­lined after the House par­lia­ment­ari­an gave primary jur­is­dic­tion of a an­oth­er sur­veil­lance re­form bill to the In­tel­li­gence Com­mit­tee in­stead of Ju­di­ciary.

In a joint state­ment, sev­er­al Ju­di­ciary mem­bers, in­clud­ing Good­latte, Con­yers, and Sensen­bren­ner, said they “as the com­mit­tee of primary jur­is­dic­tion” on in­tel­li­gence mat­ters have con­cluded that the NSA’s sweep­ing spy pro­grams are need in need of re­form.

“Over the past sev­er­al months, we have worked to­geth­er across party lines and with the ad­min­is­tra­tion and have reached a bi­par­tis­an solu­tion that in­cludes real pro­tec­tions for Amer­ic­ans’ civil liber­ties, ro­bust over­sight, and ad­di­tion­al trans­par­ency, while pre­serving our abil­ity to pro­tect Amer­ica’s na­tion­al se­cur­ity,” the law­makers said. “We look for­ward to tak­ing up this le­gis­la­tion on Wed­nes­day and con­tinu­ing to work with House lead­ers to re­form these pro­grams.”

But the House In­tel­li­gence Com­mit­tee struck back just as quickly on Monday. Hours after the Ju­di­ciary’s sur­prise, the in­tel­li­gence pan­el an­nounced it would vote on its own NSA bill on Thursday.

In Janu­ary, Pres­id­ent Obama an­nounced his ad­min­is­tra­tion would re­form the way NSA col­lects and stores tele­phone metadata, which in­cludes phone num­bers and call dur­a­tions but not the con­tents of a call, of vir­tu­ally all Amer­ic­ans.

The com­prom­ise lan­guage re­vealed by the House Ju­di­ciary Com­mit­tee ap­pears to be an at­tempt to align more closely with the way for­ward the pres­id­ent has out­lined. Obama has said he can­not act be­fore Con­gress gives him a bill that closely re­sembles his pre­ferred re­forms.

The Free­dom Act has 143 co­spon­sors in the House and a mir­ror bill in the Sen­ate sponsored by Patrick Leahy, a Ver­mont Demo­crat and chair­man of the Sen­ate Ju­di­ciary Com­mit­tee.

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