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.