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House Passes USA FREEDOM Act

May 13, 2015. The House passed HR 2048 [LOC | WW], the USA FREEDOM Act, by a vote of 338-88, on May 13, 2015. See, Roll Call No. 224. Republicans voted 196-47. Democrats voted 142-41.

Rep. James Sensenbrenner (R-WI) introduced this bill on April 28, 2015. He gave this bill an awkward title that produces an acronym. It is titled the "Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015". He also came up with the acronym USA PATRIOT Act back in 2001. (That Act was HR 3162 (107th Congress), the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001".)

This key provisions of this bill pertain to the controversial government bulk telephone data collection program disclosed by Edward Snowden in 2013. The purported authority for this program is Section 215 of the 2001 Act. However, the plain language of Section 215 does not support this.

Moreover, on May 7, 2015 the U.S. Court of Appeals (2ndCir) issued its opinion in ACLU v. Clapper, holding that the National Security Agency's (NSA) telephone data collection program is not authorized by Section 215 of the 2001 Act. See, stories titled "2nd Circuit Holds NSA Bulk Telephone Data Program Is Not Authorized by Section 215", "Section 215 and the NSA's Bulk Telephone Data Program", and "Reaction to 2nd Circuit's Opinion on Section 215" in TLJ Daily E-Mail Alert No. 2,723, May 7, 2015.

This bill would authorize a broad telephone data collection program, but impose some vague limits upon it.

Section 215, and two other controversial provisions of surveillance law, are set to expire, or sunset, on June 1, 2015. This bill would extend these three sunsets to December 15, 2019.

Related Bills in 113th Congress. Rep. Sensenbrenner sponsored a similar bill in the 113th Congress, HR 3361 [LOC | WW], also titled USA FREEDOM Act. The House Judiciary Committee (HJC) amended and approved that bill on May 7, 2014. The full House amended and approved it on May 22, 2014, by a vote of 303-121. See, Roll Call No. 230.

The Senate did not pass that bill, or any similar bill, in the 113th Congress. Although, Sen. Patrick Leahy (D-VT) and others introduced S 2685 [LOC | WW] on July 29, 2014.

For coverage of these 113th Congress bills, see:

Committee Markup. The House Judiciary Committee (HJC) approved HR 2048 on April 30 by a vote of 25-2. Rep. Jim Jordan (R-OH) and Rep. Ted Poe (R-TX) voted no. Notably, 12 members of the HJC did not cast votes on final passage. See, roll call.

The HJC first rejected numerous proposed amendments. It rejected an amendment offered by Rep. Poe on a roll call vote of 9-24 that would have limited FISA Section 702 authority.

The HJC also rejected an amendment offered by Rep. Steve King (R-IA) on a roll call vote of 4-24 that would have amended Section 501 of the FISA to authorize intelligence agencies to "enter into a voluntary agreement with a person to compensate such person for retaining call detail records for a period".

The HJC rejected on voice votes an amendment offered by Rep. Lofgren that would have permitted whistleblower complaints to the House and Senate Judiciary and Intelligence Committees regarding violations of law in programs covered by the FISA, an amendment offered by Rep. Labrador that would have limited what constitutes an "emergency situation" under Section 215, and an amendment offered by Rep. Jordan that would have created an Office of the Constitutional Advocate within the judicial branch to participate in proceedings before the entity titled Foreign Intelligence Surveillance Court.

The bill was also referred to the House Intelligence Committee (HIC) and the House Financial Services Committee (HFSC). However, the Chairmen of both committees waived further consideration of the bill.

Floor Debate. The full House debated and passed HR 2048 on May 13. The rule adopted by the House Rules Committee (HRC) did not allow for consideration of any amendments.

Rep. Bob Goodlatte (R-VA), the Chairman of the HJC, controlled the time for debate by Republicans. Rep. John Conyers (D-MI), the ranking Democrat on the HJC, and Rep. Adam Schiff (D-CA), the ranking Democrat on the HIC, controlled the time of the Democrats. They are all supporters of the bill. They yielded time to other supporters of the bill. Hence, the debate was one sided.

Rep. Goodlatte stated in the House that millions "of telephone metadata records are flowing into the NSA on a daily basis, 24 hours a day, 7 days a week. Despite changes to the NSA bulk telephone metadata program announced by President Obama last year, the bulk collection of the records has not ceased and will not cease unless and until Congress acts to shut it down. Not even last week's decision by the Second Circuit Court of Appeals will end this collection."

Rep. Goodlatte continued that this bill "affirmatively ends the indiscriminate bulk collection of telephone metadata. But it goes much further than this. It prohibits the bulk collection of all records under section 215 of the PATRIOT Act, as well as under the FISA pen register trap and trace device statute and the National Security Letter statutes."

Rep. Conyers (D-MI) stated that this bill "ends bulk collection, creates a panel of experts to guide the Foreign Intelligence Surveillance Court, and mandates extensive government reporting."

Rep. John ConyersRep. Conyers (at right) continued that "Today we have a rare opportunity to restore a measure of restraint to surveillance programs that have simply gone too far. For years the government has read section 215 of the PATRIOT Act to mean that it may collect all domestic telephone records merely because some of them may be relevant at some time in the future. Last week, endorsing a view that I and many of my colleagues have held for years, the Second Circuit Court of Appeals held that ``the text of section 215 cannot bear the weight the government asks us to assign it, and it does not authorize the telephone metadata program.´´"

Rep. Sensenbrenner stated that this bill unites "both national security hawks and civil libertarians", and that it "has the support of privacy groups, tech companies, and the intelligence community".

He argued against "letting section 215 and other surveillance authorities expire" as a threat to national security. He also argued against "a clean reauthorization" as "irresponsible".

Rep. Jerrold Nadler (D-NY) spoke in favor of the bill. However, he added that "Not every reform I would have hoped to enact is included in this bill. We must do more to protect U.S. person information collected under section 702 of FISA. We must act to reform other authorities, many of them law enforcement rather than intelligence community authorities, to prevent indiscriminate searches in other circumstances."

Rep. Devin Nunes (R-CA), Chairman of the HIC, spoke in favor of the bill. However, he would have preferred a clean reauthorization. "Ideally, we would reauthorize section 215 of the U.S. PATRIOT Act and other expiring FISA authorities without making any changes. These provisions authorize important counterterrorism programs, including the NSA bulk telephone metadata program."

He also made the assertions that "they are constitutional, authorized by Congress, and subject to multiple layers of oversight". He argued that the revised Section 215 authority "will be slower and potentially less effective than the current program".

Opposition. Rep. Mark Sanford (R-SC) submitted a written statement for the record (also published in his web site) expressing his opposition to the bill.

He wrote that "last week a federal appeals court declared that the NSA's bulk data collection on American citizens over the past 14 years was illegal. So why is Congress considering a bill that would legalize a program already deemed illegal? Unfortunately, that is what the USA FREEDOM Act does, and I believe codifies a program that violates the Constitution."

That Court of Appeals opinion held that the program exceeds statutory authority. It did not address the Constitutional challenges.

Rep. Mark SanfordRep. Sanford (at right) continued that "the bill uses broad language to define who and what the government can search, which means that it still could technically collect Americans' information in bulk--just not as much as before. The bill does this by leaving the door open for the government to search geographic regions instead of the entire country as it does now. For example, the government could require phone companies to turn over all the records of their customers in South Carolina".

He also argued that this bill is defective because it does not also reform FISA Section 702 "outside the U.S." surveillance authority. He elaborated that "This section allows the government to sweep up the content of an American citizen's emails, instant messages and web browsing history just because they happen to be communicating with someone outside the U.S. In fact, the former NSA director General Keith Alexander admitted that the NSA specifically searches Section 702 data using ``U.S. person identifiers.´´ This so-called ``back door search loophole´´ should have been closed in this bill because it violates the Fourth Amendment by getting around the warrant requirement. The notion that Americans' rights are contingent on the geography of where a call is directed is not consistent with the Constitution and highlights why this particular section needs to be changed."

Thirdly, Rep. Sanford lamented that "this bill does not require the government to destroy information obtained on Americans who are not connected to an investigation."

Similarly, Rep. Sam Farr (D-CA) wrote that "the bill would continue to allow for large swaths of information gathering. Simply put, I cannot vote for a bill that does not protect the privacy enshrined in the Fourth Amendment and guaranteed to all Americans. The risk of faulty information collection is not a risk I am willing to take with any American's privacy. Upholding the U.S. Constitution is non-negotiable."

He added in a release that the "USA Freedom Act is just a watered down version of the Patriot Act".

Former prosecutors, including Rep. Tom Marino (R-PA) and Rep. Trey Gowdy (R-SC), backed the bill. Former judges, including Rep. Ted Poe (R-TX) and Rep. Louie Gohmert (R-TX), both voted against the bill.

Rep. King, Rep. Jordan, and Rep. Labrador, who had tried unsuccessfully to amend the bill in Committee, voted no. However, Rep. Lofgren voted yes.

(Published in TLJ Daily E-Mail Alert No. 2,724, May 18, 2015.)