As USA Freedom Act Clears House, Detractors Demand Senate Fixes

Attention now shifts to the Senate, which some House lawmakers and privacy advocates hope will restore what they see as the teeth of the USA Freedom Act. The House bill had recently cleared the Judiciary and Intelligence committees in slightly modified form, and the latest version, changed since committee markup, was released to the public only Tuesday. The debate has raged for the past year and follows President Barack Obama’s stated intentions to move government bulk collection of metadata away from government hands and allow intelligence officials to go to phone companies to seek it.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., “was disappointed that the legislation passed today does not include some of the meaningful reforms contained in the original USA FREEDOM Act,” which he authored in the Senate, he said in a statement. “I will continue to push for these important reforms when the Senate Judiciary Committee considers the USA FREEDOM Act next month.” The House vote still shows “progress that few could have predicted less than a year ago,” Leahy said. Sen. Richard Blumenthal, D-Conn., tore into the House bill as “insufficient” and encouraged the Senate to consider Leahy’s original bill. Sen. Ron Wyden, D-Ore., also announced opposition to the House version -- its “definition of a ’selection term’ is so vague that it could be used to collect all of the phone records in a particular area code, or all of the credit card records from a particular state,” Wyden said. “While this bill’s authors may not intend for it to be interpreted so broadly, the Executive Branch’s long track record of secretly interpreting surveillance laws in incredibly broad ways makes it clear that vague language is ineffective in restraining the Executive Branch.” Sen. Mark Udall, D-Colo., slammed the House version as “overbroad.”

"The Senate may be able to go even further” due to the “huge, overwhelming vote of support” from the House, House Judiciary Committee ranking member John Conyers, D-Mich., told reporters at a news conference of Judiciary leadership after the legislation’s passage. Conyers backed the bill and said “although it’s not perfect,” it’s a “win for civil liberties.” House IP Subcommittee ranking member Jerrold Nadler, D-N.Y., also defended the bill. He said he wishes “the bill went farther” but “Congress has to work its will.” Nadler wants the Senate to revamp the bill to give it more teeth, he said. “But just because it’s not far enough is no reason to vote against it.” Judiciary leadership from both parties insisted the bill ends bulk collection and defended its merits.

"Different can be worse rather than better,” House Judiciary Committee Chairman Bob Goodlatte, R-Va., warned at the Thursday news conference. “No legislation is perfect.” He emphasized the “very carefully negotiated deal” with multiple House committees and the White House in recent weeks to produce the legislation, cautioning against potential severe Senate changes that could happen. Nonetheless, he wants the Senate to act “promptly,” he said.

Crime Subcommittee Chairman Jim Sensenbrenner, R-Wis., noted, “303 to 121 ain’t bad.” He’s the primary author of the original USA Freedom Act. Sensenbrenner supported passage of the modified bill but acknowledged the criticism and struggle to define selection criteria. “While we were not able to close and lock the door and throw away the key on this area, I think what we've done is probably going to be more effective in getting the NSA to stop bulk collection,” Sensenbrenner said, pointing to provisions in the bill that would require Congress to be notified within a day of any selection shifts and the public within 45 days. That notification would enable lawmakers and the public “to stop it” were the NSA to attempt to resume any bulk collection.

"It’s important for all the members to know that what is being considered is not the bill that was marked up by the House Judiciary Committee,” said senior Judiciary member Zoe Lofgren, D-Calif., a former co-sponsor of the bill, on the floor Wednesday. “After it was reported unanimously by the House Judiciary Committee, certain key elements were changed. I think it’s ironic that a bill that was intended to complete transparency was secretly changed between the committee markup and floor consideration, and it was altered in worrisome ways.” The bill has changed the definition of “selector” in ways that would allow for “large-scale acquisition of data,” she said.

Lofgren voted against the bill despite voting in favor of the version that unanimously cleared Judiciary earlier this year. Other notable “nay” votes included surveillance critic Justin Amash, R-Mich.; Communications Subcommittee ranking member Anna Eshoo, D-Calif.; House Oversight Committee Chairman Darrell Issa, R-Calif.; and Commerce Committee ranking member Henry Waxman, D-Calif. The bill “was so weakened in behind-the-scenes negotiations over the last week that the government still can order -- without probable cause -- a telephone company to turn over all call records for ‘area code 616’ or for “phone calls made east of the Mississippi,” Amash said on Facebook, explaining his “no” vote (http://on.fb.me/1n5ISok).

Early Thursday, several lawmakers rose to speak on the floor defending the modified legislation. “Nothing in this bill will legalize bulk collection,” House Intelligence Committee ranking member Dutch Ruppersberger, D-Md., said, noting some members were saying it will. “Read the bill. ... That’s what the bill says.” House Intelligence Committee Chairman Mike Rogers, R-Mich., also encouraged passage and said “everyone involved in this cares about civil liberties and privacy.”

The Senate must strengthen the bill, the American Civil Liberties Union, the American Library Association, the Center for Democracy & Technology, Free Press and the New America Foundation’s Open Technology Institute demanded in separate statements following passage. The Computer & Communications Industry Association and the Reform Government Surveillance coalition, composed of top tech companies, had both slammed the House-passed bill and withdrew support. Amnesty International and ThoughtWorks dropped support Thursday. The Information Technology Information Council sent a letter to House leadership Wednesday lamenting the changes in the bill’s selection language and called for more clarity.