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Yesterday's USA Freedom Markup: A Glimpse into the Fight to Reform Section 702

DEEPLINKS BLOG
May 1, 2015

Yesterday's USA Freedom Markup: A Glimpse into the Fight to Reform Section 702

The 2015 version of the USA Freedom Act, HR 2048/S.1123 passed out of the House Judiciary Committee this week, with a vote of 25 ayes and 2 noes. The Committee did not pass any amendments to the legislation. But the markup discussion revealed a lot about where the House Judiciary Committee stands when it comes to reforming Section 702 of the FISA Amendments Act—one of the key authorities that the government claims as justification for mass surveillance.

House Judiciary Committee Chair Rep. Bob Goodlatte explained why he and others voted against all amendments:

The legislation before us today was painstakingly and carefully negotiated not just amongst members of this committee, but with our colleagues on the House Intelligence Committee and the intelligence community… We must not pass amendments that will be a poison pill to the success of these reforms.

Rep. Goodlatte made it clear that he wanted to pass the bill as is to preserve a carefully crafted compromise. In fact, he and other supporters of USA Freedom on the Committee repeatedly noted that they supported certain amendments in theory, but could not vote for them because of their concern about making the legislation impossible to pass.

We think it’s important to take note of what they supported and what they didn’t. When these issues come up again, either around another piece of legislation or another reauthorization fight, we hope that you’ll join us in holding these lawmakers accountable.

Ultimately, the lack of amendments was a mixed blessing because it blocked both bad and good changes. A data retention amendment from Rep. Steve King that would have authorized the government to enter into agreements with telecoms and compensate those telecoms to store data was on the table.

Rep. Goodlatte spoke favorably about the amendment, but made it clear that he couldn’t support it because “data retention issues are controversial, and inclusion of this amendment will most certainly prevent consideration of this bill” on the House and Senate floor.[1] We’ve long been concerned about data retention, so we’ll be following this issue closely.   

Unfortunately, there were also some important amendments that would’ve strengthened a piece of legislation that we see as only a first, small step in the right direction— one that has serious faults that could have been partially addressed by these changes.

In particular, we were closely watching an amendment that aimed to cut funding to NSA “backdoors” from Rep. Ted Poe, which mirrored the language in an amendment to the 2014 Department of Defense appropriations bill. As Rep. Zoe Lofgren, who also introduced the similar Secure Data Act of 2014 with Sen. Ron Wyden, explained:

we have said that the bill would end bulk collection, but without addressing 702, I do not think it is correct that we will be ending bulk collection.

The amendment would have addressed two types of NSA backdoors. First, it attempted to end the practice known as "backdoor searches.” The NSA collects contents of communications under Section 702 of the FISA Amendments Act. Even though it’s ostensibly used for foreign targets, Section 702 surveillance sweeps up the communications of Americans, and the NSA has acknowledged that it searches this information without a warrant for the communications of Americans. The amendment that did not pass yesterday attempted to prohibit this practice except in a few limited situations.

The amendment also addressed the NSA’s backdoor into products and services. Leaked documents have shown that the NSA, with the help of the FBI, has sought backdoors into products and services, from encryption software to online communications tools like Skype. While the government claims that these backdoors would only be accessible to them, tech companies and security experts have made it very clear that security backdoors make products and services, and by extension the Internet, less secure for everyone. Yet both the FBI and NSA Directors have recently urged companies to install security "backdoors" into hardware or software, even while American businesses continue to suffer reputational harm overseas and even lose business.

Ultimately, the amendment failed 9-24.[2] Rep. John Conyers echoed Rep. Goodlatte’s comments on the compromise represented by the legislation in explaining his no vote:

 Any amendment to this compromise threatens to stop this legislation dead in its tracks. This is not mere speculation. House leadership had all but assured us that if the bill is amended, it will not be considered on the House floor.

However, Rep. Conyers and others who voted against the amendment expressed clear support for what the amendment would have done. Rep Goodlatte noted, “this committee will exercise its jurisdiction on this and soon. We will hold a hearing on this . . .” Echoing Rep. Goodlatte’s sentiments, Rep. Darrell Issa noted:

If I get an opportunity to vote for it on a bill that cannot be blown up by the House leadership and/or the Senate, I will vote for it, and I think that is what we need to do.

Rep. Jim Sensenbrenner also said that he supports the policy, but stated, “The time and the place to do this is when Section 702 comes up for reauthorization.” The sentiment that the FISA Amendments Act expiration is the right time for 702 reform was echoed by several others as well. But the FISA Amendments Act doesn’t expire until December 31, 2017.  We don’t think reform to this unconstitutional spying bill should wait that long.  

Other amendments garnered far less discussion. An amendment from Rep. Paul Labrador would have narrowed the authority for “emergency production of tangible things” provided by Section 102 of USA Freedom. The amendment would’ve defined an emergency situation as one “involving the potential for imminent death or bodily harm to any person,” in order to ensure that emergency authority is only used in true emergencies.   

Rep. Lofgren offered an amendment that would have strengthened whistleblower protections “for both intelligence community employees and contractors,” and “provides two more pathways for whistleblowers to report wrongdoing” Finally, Rep. Jim Jordan offered an amendment that would have created “the office of constitutional advocate.”

Ultimately, regardless of what happens with USA Freedom, we look forward to fighting for Section 702 reform in Congress. For now, we agree with Rep. Sensenbrenner’s statement at the hearing:

Knowing what we know now, a straight reauthorization is an express vote in favor of bulk collection on Americans.

If you think so too, take action by going to Fight215.org.  



[1] The yes votes on this amendment were Representatives Gohmert, King, Jordan, and Poe.

[2] The yes votes were Representatives Gohmert, Jordan, Poe, Labrador, Buck, Lofgren, DelBene, Jeffries, and Cicilline. Additionally, Representatives Ratcliffe, Issa, Conyers, Goodlatte, Sensenbrenner, Jackson Lee, and Nadler all made clear statements that they support the policy changes the amendment would have made. We’ve taken note, since we’ve long been pushing for reform to Section 702 and don’t plan on stopping anytime soon. 

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