Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015

Floor Speech

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Mr. VAN HOLLEN. Mr. Speaker, I rise today in opposition to H.R. 2048, the USA Freedom Act.

In the wake of last week's 2nd Circuit Court Decision, I want to commend Chairman Goodlatte, Ranking Member Conyers, Congressman Sensenbrenner, and Congressman Nadler, for crafting legislation that makes meaningful reforms to many NSA surveillance programs--including Section 215 of the Patriot Act--and is a departure from the untenable status quo. However, despite these positive reforms, this bill fails to address Section 702 of the FISA Amendments Act, an even more invasive program than Section 215 which allows the government to collect both data and content of Americans without a warrant.

Last year's version of the USA Freedom Act similarly scaled back many of the surveillance programs the NSA currently has at its disposal. Unfortunately, Section 702 was not one of them. Throughout the process, we were repeatedly assured by Chairman Goodlatte and Congressman Sensenbrenner that there would be a real future effort to address Section 702. At that time, Rep. Sensenbrenner stated, ``Section 702 of FISA has been improperly used to obtain the content of Americans' private communications without a warrant, which is unconstitutional under the Fourth Amendment and a blatant violation of Americans' civil liberties.''

Like Rep. Sensenbrenner, I have also consistently said that Section 702 opened the door to some of the most troublesome surveillance practices that have come to light in recent years. Last year, I strongly supported the effort to fix those aspects of Section 702. Unfortunately, as I indicated last year, last minute changes stripped out provisions that would have ``prevented the NSA from being able to search government databases for foreign communications content of American citizens without a warrant.'' When those important provisions were removed, Chairman Goodlatte and Rep. Sensenbrenner pledged that we would address these reforms without delay.

Unfortunately, here we are a year later and Chairman Goodlatte and Rep. Sensenbrenner still have not allowed for a full debate and vote on this issue. Despite the Chairman's supposed support to end Section 702, when Congresswoman Lofgren offered an amendment during markup of the USA Freedom Act to prohibit these warrantless backdoor searches, Chairman Goodlatte said, ``this is a poison pill amendment ....., there is a time and a place for everything.'' When this bill came before the Rules Committee, Rep. Lofgren was not even allowed to offer her amendment.

The refusal to include reforms to Section 702 is even more disappointing given that there are many important provisions in this bill that provide additional safeguards to protect the privacy and civil liberties of Americans. Specifically, this bill puts significant constraints on the government's ability to collect data under Section 215. No longer will the NSA be able to collect the phone records of millions of Americans who have no connection to crime or terrorism. Instead, every request made by the NSA for specific call records must be reviewed on a case-by-case basis by the FISA court.

This legislation also carefully constructs the definition of the ``specific selection terms'' the government can use to access call records. H.R. 2048 requires the ``specific selection term'' to be an ``individual, account, or personal device.'' As a result, no longer will the NSA be able to collect phone records in bulk using terms like ``People in Maryland'' and ``Area Code 301.''

Despite these improvements to Section 215, I remain disappointed that the bill does not establish a Citizens Advocate to represent citizens' privacy interests at the secret FISA Court proceedings. In 2013, Representative Jim Jordan and I introduced bipartisan legislation to create such a position. The initial draft of last year's USA Freedom Act included this provision, but this language has since been weakened and only provides for a panel of advisors to be employed at the discretion of the FISC.

Last month's decision by the Second Circuit in ACLU v. Clapper, makes clear that Section 215 is illegal and that a clean re-authorization would be a clear violation of the law. So while I appreciate the reforms made in this bill to Section 215, these reforms are modest given the Court's recent decision. On the other hand, Section 702 of the FISA Amendments Act does not sunset until the end of 2017 and there is no clear indication that we will be voting to curtail this program anytime in the near future. I believe that today's legislation could be our last real opportunity to address this. It is my hope that the companion legislation in the Senate includes these provisions and that I will be able to support a final compromise bill later this year.

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