House Judiciary Signs Off on Revised USA Freedom Act

President Barack Obama has said this year he wants to end the government’s bulk collection of phone metadata and expressed a desire to do so legislatively, with a goal of shifting metadata storage from the government to phone companies. Goodlatte, ranking member John Conyers, D-Mich; Crime Subcommittee Chairman Jim Sensenbrenner, R-Wis., the original USA Freedom Act author; subcommittee ranking member Bobby Scott, D-Va.; and Reps. Jerrold Nadler, D-N.Y., and Randy Forbes, R-Va., announced the substitute language earlier this week. Goodlatte had never been one of the USA Freedom Act’s 144 co-sponsors despite criticizing many aspects of government surveillance, which the administration has said is authorized by Patriot Act Section 215. Goodlatte called the amendment an “appropriate approach” and he and other Judiciary members have argued their committee has prime jurisdiction over the Foreign Intelligence Surveillance Act.

"The USA Freedom Act represents the consensus view that all domestic bulk collection [of metadata] must end,” Conyers said, despite calling the manager’s amendment “a less than perfect compromise.” He said “dragnet surveillance” of U.S. citizens is not merited. “The ban applies to Section 215 of the Patriot Act, the [Foreign Intelligence Surveillance Act] FISA pen register authority and the entire suite of National Security Letter statutes.”

"The administration’s interpretation of Section 215 is wrong,” Sensenbrenner said, slamming the way the government interpreted the definition of relevance. The bill would utterly outlaw bulk collection and makes “crystal clear” that Congress does not endorse that, he said. He also emphasized the virtues of the five individuals who would be amicus curiae to the Foreign Intelligence Surveillance Court, which would have the same goal as a special advocate to the court. The presiding judges of the FISC and the FISA Court of Review would be able to choose up to five people to serve in this role, with expertise in privacy, civil liberties, intelligence collection, telecom or other legal or technical areas, with appropriate security clearance. There are new changes to the substitute text Wednesday compared with what was released earlier this week, such as making clear the surveillance queries would be limited to two “hops” of inquiry away from the target, he said. “This bill could go all the way to the president’s desk and be signed into law."

It “codifies the president’s telephone metadata reform proposal,” Nadler said. “As requested, it allows the government to obtain a court order authorizing it to obtain the telephone metadata records that it needs from the phone companies in specific cases. The companies -- not the government -- keep the underlying records, which are only searched using specific selection terms designed to return only those records that are relevant to a terrorism investigation.” Nadler also said the bill is not perfect but emphasized the need to pass it.

The lawmakers emphasized the changes the manager’s amendment would make to FISA Section 702. The amendment “entirely prohibits the retention and dissemination of wholly domestic communications and prohibits the government from using information acquired in violation of court-approved targeting or minimization procedures,” as Nadler said when discussing how Section 702’s surveillance of non-U.S. citizens’ communications likely wraps up U.S. citizens’ information.

Rep. Suzan DelBene, D-Wash., raised a concern that the manager’s amendment does not do enough to allow companies to disclose information about surveillance requests. She and Rep. Zoe Lofgren, D-Calif., argued for companies being allowed to report requests in smaller increments. She introduced an amendment with the backing of Goodlatte and Sensenbrenner that would make those changes to what companies can report. Judiciary widely approved the amendment.

Lofgren unsuccessfully proposed an amendment raising the standard of when the government can seek information. She offered a short amendment replacing certain phrases, suggesting the government would need to show “probable cause” except where there was an authorized emergency authority. Sensenbrenner opposed the amendment because he feared it may “blow up” what he believes to be a “fast track” to the bill’s passage. Nadler agreed with Sensenbrenner, as did other members. She hoped the amendment would kick-start a discussion of what protections are needed. Lofgren offered another amendment that reflected she called “pretty serious” concerns with how Section 702 is overhauled, calling for a warrant requirement added to Section 702 searches. The manager’s amendment “watered it down significantly,” she said of the original “far superior” Section 702 protections in the USA Freedom Act. Goodlatte opposed it, and the majority of Judiciary voted against it.

Rep. Steve King, R-Iowa, unsuccessfully proposed an amendment to the substitute language and said he would have liked an opportunity to weigh in on the language before the markup. King was unaware the new language was coming until it was released Monday, he said. “What it doesn’t do ... does it make us safer?” King asked. “And the answer is that is no one has mentioned how it might make us safer. I will conclude that it in fact makes it less safe.” The warrant would no longer be five years but now 18 months of metadata retention, the amount of time prescribed by FCC regulations, King said. The amendment he offered would allow national security officials to “negotiate” with telecom companies on how long they would retain the metadata, but on the whole would still recognize “the principles of the underlying bill,” he said. He stressed his amendment does not create a mandate.

"I have real concerns about some of the changes made in the manager’s amendment,” said Rep. Louie Gohmert, R-Texas, despite his co-sponsorship of the original USA Freedom Act. Gohmert voiced the same concerns as King, also asking for more flexibility in how long companies would hold the metadata. Companies like AT&T and Verizon “don’t have the authority to put you in jail” if they are upset, which is why the government should not be the “repository” for all phone records, he said. The companies would “incur a burden” if forced to hold the metadata but should be able to enter into such contracts, he said.

Goodlatte said there’s nothing in current law or in the substitute language that would prevent companies from reaching deals with the government to retain information longer. But that was “not contemplated by President Obama,” who said phone companies would not be required to hold metadata for longer than they normally would, Goodlatte said. Such retention doesn’t necessarily “assuage” privacy advocates and opens the metadata to data breach risks, he said, announcing his opposition to the amendment despite its being “legitimate.” Conyers agreed and pointed out how Obama did not ask for a data retention mandate applied to phone companies. Conyers called King “well-intentioned” but hoped the amendment fails, he said. “There’s no upside to this amendment,” Nadler said. “It’s not mandatory so it’s not the worst amendment in the world” but “goes against the spirit of the bill” and “does harm privacy.” “The phone companies would end up being coerced if they were approached by the government,” Sensenbrenner said.

"I didn’t hear a reason to oppose my amendment,” King said after Goodlatte and Conyers spoke. The bill would mean national security forces “lose three-and-a-half years” of access to metadata, he said. King and Gohmert voted for the amendment along with two others, but the majority of Judiciary shot it down.