USA Freedom Act Passed Out of House Committee

Five amendments were proposed by members from both parties during Thursday’s markup, but all were defeated. Rep. Ted Poe, R-Texas, introduced the most controversial amendment, which would have ended the bulk collection of email and phone content allowed under Patriot Act Section 702 in addition to the collection of metadata allowed under Section 215.

The data collection program under Section 702 is “being abused,” and real communication, not just metadata is being collected, Poe said. The intelligence community can search a database for information on a U.S. citizen without obtaining a warrant because the individual called a cousin in another country, Poe said. Law enforcement “can’t pick and choose when the Fourth Amendment applies,” Poe said. National Intelligence Director James Clapper has said the intelligence community uses Section 702, Poe said. The next real opportunity for surveillance reform is December 2019, Poe said, when three Patriot Act provisions renewed or reformed under the USA Freedom Act are set to expire. In a year, people will realize more should have been done, he said.

Poe’s amendment included a provision that would have prohibited federal agencies from mandating companies include a data backdoor for their use. Ranking member John Conyers, D-Mich., said he supported Poe’s amendment but wouldn't vote for it because “House leadership all but assured us that if the bill is amended, it will not be considered on the House floor.” A “vote in favor of the amendment is a vote to kill the bill,” Conyers said.

“If the amendment is adopted, you can kiss this bill goodbye,” said Rep. Jim Sensenbrenner, R-Wis. Sensenbrenner urged his colleagues to “not blow 215 reforms on 702.” Rep. Zoe Lofgren, D-Calif., said she supported the amendment because Clapper confirmed the intelligence community searches the content of emails and phone calls without individual suspicion or probable cause, and said the FBI is one agency putting pressure on companies to include backdoors.

“The most egregious violations of the Fourth Amendment are occurring under 702,” Lofgren said. Bulk collection will continue for the next two years when Section 702 sunsets in 2017 unless both 215 and 702 are addressed, she said. Rep. Darrell Issa, R-Calif., said he supported the amendment but voted against it because it had been in the bill last year that failed to pass. Rep. Jerrold Nadler, D-N.Y., said House leadership wouldn’t permit the bill on the House floor if Poe’s amendment were included. “It’s a fact,” he said.

It’s inappropriate to allow the intelligence community to have veto power over the will of the American people, said Rep. Raúl Labrador, R-Idaho. Everyone speaking against the amendment is for it, he said. It’s a sad day for America when a bipartisan amendment is defeated because a handful of people want to continue collecting data on Americans, Labrador said.

The Judiciary Committee is supposed to protect the Constitution, Poe said. Failing to include the amendment postpones Fourth Amendment protections for Americans for at least a year, Poe said. “The Constitution should trump politics.” The amendment was defeated 24-9.

An amendment that would have let the intelligence community contract with phone companies to obtain metadata once a Foreign Intelligence Surveillance Act (FISA) warrant was obtained was defeated 24-4. The intelligence community’s ability to collect information was “severely damaged by [former NSA contractor] Edward Snowden,” said Rep. Steve King, R-Iowa, who introduced the amendment. It may take a generation or more to reconstruct some of the national security tools used by intelligence agencies to protect the American people from attacks, King said. Goodlatte said data retention is a controversial issue and said outside of the legislation, he would agree to work with King to find ways to ensure the intelligence community can do a proper job.

Amendments by Reps. Jim Jordan, R-Ohio, Labrador and Lofgren that would have required a constitutional advocate to represent individuals before the FISA court, narrowly defined emergency authority to emergency situation to prevent abuse of warrant-less searches, and created whistleblower protections for members of the intelligence community, including government contractors, were all defeated as well.

After the committee voted to send the bill to the House floor, Sensenbrenner, Goodlatte, Conyers and Nadler released a joint statement saying surveillance reform is an American issue and urged the House and Senate to “move expeditiously on this legislation so that we rein in government overreach and rebuild trust with the American people.”