After months of outward inactivity, two key Committees of the House of Representatives with previously very different views of what the government’s surveillance powers should be have just breathed new life into long-stalled efforts to reform existing national security laws sparked by the revelations of NSA “leaker” Edward Snowden almost a year ago.
On Wednesday, May 7 the House Judiciary Committee, chaired by Rep. Robert Goodlatte of Virginia, took up and unanimously passed a new version of the USA FREEDOM Act, H.R. 3361. Both the original bill (pdf) and the so-called “substitute amendment” (pdf) approved Wednesday with just one “friendly” amendment (pdf) were authored by Rep. James Sensenbrenner of Wisconsin. Less than 24 hours later, and quite contrary to the expectations of most observers, House Permanent Select Committee on Intelligence Chair Mike Rogers abandoned his long-standing plan to produce more restrictive surveillance “reform” legislation, opting instead to have the Intelligence Committee take up and pass by voice vote the Judiciary Committee’s new version of H.R. 3361 without amendment.
This unexpected Committee comity significantly increases the odds of a full House vote on the legislation, potentially soon and in any event before Congress adjourns for the mid-term elections in the fall. Speaker Boehner has not indicated whether he will wait for the Senate to act first on its version of reform legislation before scheduling a House vote on H.R. 3361. Near term, however, the Speaker does want to take up and pass the National Defense Authorization Act (NDAA), which funds the Department of Defense. That significantly increases the odds of rapid consideration of H.R. 3361 in order to preclude “surveillance reform” amendments to the NDAA like those offered in the past. For his part, Senate Judiciary Committee Chairman Leahy has stated that his Committee will take the matter up “this summer.”
Also unclear is what changes, if any, may be made by Committee and House leadership in the bill before it reaches the House floor. Several members of the Judiciary Committee made clear at Wednesday’s “markup” of H.R. 3361 that they will try to further strengthen privacy protections for the public and Senator Leahy echoed their commitments. For his part, Intelligence Committee Chairman Rogers issued a statement indicating that he looks “forward to working with the Judiciary Committee, House and Senate leadership, and the White House to address outstanding operational concerns and enact the USA Freedom Act into law this year.”
While the bill in its current form doesn’t provide all of the privacy protections backed by ALA and its coalition partners, ALA will continue to work with them and Congressional leadership to improve H.R. 3361 over the next few weeks as it moves forward in the House, and through the summer in the Senate. Key objectives will include: tightening the statutory language to assure that the new legislation can’t be misinterpreted and misapplied to permit the collection of Americans’ emails and other communications; adding transparency to authorized surveillance efforts by permitting more extensive public disclosure by phone companies of how many government requests for data they receive and how many phone records were actually accessed in a given period; and establishing more robust “watchdog” mechanisms for detecting potential abuses or infractions of new law.
As summarized by the House Judiciary Committee, H.R. 3361:
Prohibits Bulk Collection of Data: The bill protects Americans’ privacy by prohibiting bulk collection under Section 215 of the PATRIOT Act (Section 501 of FISA), under the FISA Pen Register/Trap and Trace law (Section 402 of FISA), and under National Security Letter statutes.
New Mechanism for Obtaining Call Records: To ensure national security officials have the needed information to keep Americans safe while enhancing Americans’ confidence in the manner in which this information is collected and held, the bill creates a new process for the collection of call detail records. The government would be required to seek approval from the Foreign Intelligence Surveillance Court (FISC) of specific selection terms on a case-by-case basis. The FISC is authorized to allow up to two “hops.” The government may renew these orders every 180 days.
Protects Americans’ Privacy: The bill codifies current minimization procedures, requiring the government to adopt procedures that are reasonably designed to minimize the retention and prohibit the dissemination of nonpublic information about Americans. It also clarifies the existing provision in the FISA Amendments Act against reverse targeting and reiterates Congress’ intent in protecting the communications of Americans. Additionally, it prohibits the government from using unlawfully obtained information about Americans acquired outside the scope of court-approved targeting and minimization procedures.
Ensures Robust Oversight of Intelligence-Gathering Programs: The bill increases oversight of our intelligence-gathering programs by providing for judicial review of minimization procedures for the production of tangible things, such as emails and phone calls.
Increases Transparency of Intelligence-Gathering Programs: The billcreates a panel of legal experts to help ensure the FISA court adequately considers privacy concerns and Constitutional rights of Americans and also requires the Attorney General to conduct a declassification review of each decision, order, or opinion of the FISA court that includes a significant construction or interpretation of the law. The bill also requires the government to disclose the number of requests made for call detail records under the new collection program and requires the Administrative Office of the U.S. Courts to publicly report annually the number of FISA orders issued, modified, or denied by the FISC.
Allows American Tech Companies to Disclose FISA Orders: The Committee today approved an amendment offered by Congresswoman Suzan DelBene (D-Wa.), Chairman Goodlatte, and Crime Subcommittee Chairman Sensenbrenner to allow companies to semi-annually publicly report requests for information they receive under FISA and National Security Letter authorities. This amendment codifies the Justice Department’s settlement with several companies earlier this year while making additional modifications to allow for even greater transparency to the American people about their privacy and the extent of the intelligence community’s work, while protecting national security.