House Advances Bill to Limit NSA Spying
Nearly two years after the Snowden revelations began, lawmakers are scrambling to rein in government surveillance—before it’s too late.
A House committee advanced major legislation Thursday that would effectively end the National Security Agency's bulk vacuuming of American phone records, a lurch forward for surveillance reform that comes as key spying authorities are a month away from expiring.
The House Judiciary Committee passed the USA Freedom Act without amendments by a vote of 25-2, an endorsement that comes just two days after the bipartisan legislation was reintroduced in both chambers of Congress.
The panel's quick approval of the bill reflects the speed with which lawmakers hope to get it to the president's desk in the coming weeks. That urgency is due to the expiration of three key provisions of the Patriot Act on June 1, including Section 215, which the NSA uses to justify its mass surveillance of U.S. call data.
Many of the bill's backers privately concede it is unlikely that Congress will adopt stringent limitations to the NSA's spying apparatus if an agreement is not worked out before that fast-approaching deadline. But House leadership has indicated that the Freedom Act has its support, and it may earn a floor vote when the chamber reconvenes after next week.
"Of course it's not everything I'd want, but I think it's a solid agreement that basically passed the House last year," House Speaker John Boehner said Thursday during a press conference.
But the committee's work may be all for naught if the Senate fails to consider the bill soon. A key obstacle remains in the upper chamber, as Senate Judiciary Chairman Chuck Grassley has said he cannot support the bill until he has further discussions with members of the Senate Intelligence Committee.
The rush to advance the Freedom Act is compounded by Senate Majority Leader Mitch McConnell's surprise introduction earlier this month of a bill that would extend the expiring sections of the Patriot Act until 2020 without any changes. That clean authorization is cosponsored by Senate Intelligence Chairman Richard Burr, who has said it is meant to be a starting point more than a final deal. But heavyweight defense hawks in the upper chamber—including Sens. John McCain and Tom Cotton—have signaled that they would have no reservations about adopting the McConnell language in full.
After the vote, House Judiciary Chairman Bob Goodlatte told reporters that McConnell's bill would not have "any chance in the House."
The Freedom Act would usher in a bevy of privacy and transparency initiatives intended to ensure more oversight of the intelligence community's expansive surveillance powers. Chiefly, it would end the government's dragnet collection of U.S. phone records, the first and most controversial of the spying programs exposed nearly two years ago by Edward Snowden, a former NSA contractor currently living in Russia under asylum. It would instead allow NSA analysts to ask for call metadata—the numbers, time stamps, and duration of a call but not its content—from phone companies on an as-needed basis after obtaining judicial approval.
The measure would additionally narrow the scope of a "specific selection term," which dictates how broad a surveillance target can be defined. It would also allow U.S. tech firms like Facebook, Google, and Twitter to disclose more information about government data requests made via the Foreign Intelligence Surveillance Court, and give these companies more leeway in how they can respond to national security orders.
Tech companies still reeling from the Snowden revelations largely support the Freedom Act as a necessary and appropriate response to the digital spying authorities that have come to define post-9/11 national security under the Bush and Obama administrations.
But privacy advocates are deeply divided over the bill. Some, such as those at the Center for Democracy & Technology, support the language, arguing it represents the best chance in Congress to nab substantive surveillance reforms in years. The American Civil Liberties Union and other groups, however, are not offering their blessings, instead advocating a complete sunset of the Section 215 authorities.
Nearly one year ago, the House Judiciary Committee unanimously passed an earlier iteration of the USA Freedom Act, a bill that earned a lopsided victory on the House floor after leadership and members of the Intelligence Committee collaborated to water down some of the privacy provisions.
The bill's authors do not anticipate such changes to occur this time around. That is partly due to several national security concessions not directly related to mass phone surveillance made to cajole both the House and Senate intelligence committees to be more palatable to the package, such as a provision to increase the maximum penalty for those who offer material support to terrorism from 15 to 20 years.
Those months of backroom negotiations played a heavy hand in Thursday's vote, as the committee rejected all amendments considered due to fears that they would jeopardize the bill's chances to swiftly make it through the House.
"House leadership has all but assured us that if the bill is amended it won't be considered on the House floor," said Rep. John Conyers, the Judiciary panel's top Democrat. "We negotiated this bill in good faith."
Privacy advocates were particularly dismayed to see an amendment shot down that had been offered by Republican Rep. Ted Poe of Texas; this measure would have closed the so-called "backdoor search loophole" that allows government spies to access communications content belonging to U.S. persons that is sent to foreigners or stored overseas without a warrant in some cases. The amendment, which failed 9-24, also would have barred the government from requiring a tech firm to build surveillance backdoors into its products.
Though the amendment passed the House 293-123 as a defense appropriations add-on last year before later being stripped out, the committee refused to adopt it Thursday.
"If there ever was the 'perfect being the enemy of the good' amendment, this is it," said Republican Rep. Jim Sensenbrenner of Wisconsin, the original author of the Patriot Act, who supported the amendment last year. "If this amendment is adopted, you can kiss this bill goodbye.
"This is not the time or the place to do this," he added, saying lawmakers should reconsider it when another intelligence authority—Section 702 of the Foreign Intelligence Surveillance Act—expires in 2017.
But Rep. Zoe Lofgren, a California Democrat, shot back. "The votes of the U.S. House of Representatives should matter," she said. "It astounds me that you have a vote of the full House on this direct question, and somehow that is without merit or consideration. I find it hard to accept that."
The back-and-forth debate over the amendment lasted nearly an hour, and at one point involved lawmakers asking panel leadership precisely who, exactly, was urging that it be shot down. "Everyone who's spoken against it is actually for the amendment," Republican Rep. Raul Labrador of Idaho noted at one point. "It's a sad day for America."
Reps. Poe and Jim Jordan, an Ohio Republican, ultimately cast the only two votes against the full Freedom Act.
While the House appears headed for a vote on the bill soon, the Senate's intentions remain unclear. A separate version of the Freedom Act—generally considered stronger on civil liberties than what the House Judiciary Committee passed Thursday—came two votes short of clearing the 60-vote threshold needed to advance through the Senate six months ago.
Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, applauded the House vote as "an historic step today to protect Americans' privacy rights.
"The committee's overwhelming vote in favor of the USA Freedom Act makes clear that a clean reauthorization of the NSA's bulk collection program will not prevail in this Congress," the Vermont Democrat said in a statement.