Usa Freedom Reauthorization Act of 2020

Floor Speech

BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, pursuant to House Resolution 891, I call up the bill (H.R. 6172) to amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes, and ask for its immediate consideration.

The Clerk read the title of the bill.
BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, the Foreign Intelligence Surveillance Act, or FISA, authorizes the government to collect foreign intelligence in the United States under the supervision of a secret court.

It is one of the most complicated, technical statutes we handle, but the story of FISA and how Congress reacts to its use is really very simple.

Some measure of surveillance is necessary to keep our country safe. Left unchecked, however, the executive branch is all too willing to unleash its considerable surveillance capabilities on the American people.

Our job as Members of Congress is to make sure that our intelligence capabilities are robust, but also to provide that critical check, to claw back authorities that go too far, and to press for changes that protect our civil liberties to the maximum extent possible.

H.R. 6172, the USA FREEDOM Reauthorization Act, is one step in that ongoing project of protecting our civil liberties.

It is by no means a perfect bill. There are many other changes to FISA that I would have liked to have seen here, but this bill includes very important reforms.

First and foremost, it ends the NSA's call detail records program, which began as part of a secret and unlawful surveillance project almost 20 years ago. This experiment has run its course, and our responsibility is to bring it to its formal end. It should never have been permitted to start, but now at least we can finally end it.

This bill also prohibits the use of section 215 to acquire information that would otherwise require a warrant in the law enforcement context. Our understanding of the Fourth Amendment has come to recognize a privacy interest in our physical location, and this legislation provides new protections accordingly.

As the law continues to evolve, the public will see how the government applies these standards in the FISA court. This bill requires the government to disclose all significant opinions of the FISA court within 180 days.

The bill also requires a one-time historical review of all significant opinions issued by the court since its inception. The Department of Justice may have good cause to classify the details of any particular case, but there is no reason that important interpretations of the law should be kept secret. There never was, and we finally managed to get rid of it.

Now, since we circulated the original draft of this bill, we have heard from a wide range of stakeholders, from the most progressive Members of the Democratic Caucus to the staunchest supporters of President Trump, and they have convinced us to make yet additional changes.

To address the concerns of those who seek additional guarantees of privacy, we have added new retention limits, new reports to explain key legal issues, and an explicit prohibition on the use of section 215 to obtain GPS and cell site location information.

Other Members asked us to address the deep structural flaws in FISA identified by the inspector general in the report issued late last year. We have done just that. Working with our Republican colleagues, we have mandated additional transparency in FISA applications, created additional scrutiny for cases that involve elected officials, and elevated the consequences for misrepresenting information to the FISA court.

I should also address the Members on both sides of the aisle who urged opposition to this bill because it does not contain every reform we might have wanted.

Madam Speaker, I agree. It does not contain every reform that I want. I am no fan of the underlying authorities.

I represent Lower Manhattan. I was in Congress when the World Trade Center was hit. Then and now, I resented that the government exploited 9/11 to pass the PATRIOT Act, which was much too restrictive of civil liberties, and other measures that I find dangerous and overbroad.

For many years, I led the opposition to reauthorization of the business records provision of FISA, which we are finally doing something about today.

I am a founding member of what was then called the PATRIOT Act Reform Caucus to reform the PATRIOT Act. I have voted against every FISA bill that did not contain significant reform.

But the measure before us today does contain significant reform-- again, not every change we would like to see, certainly not many of the changes I would like to see, but very decisive steps in the direction of protecting our civil rights and our civil liberties.

We are taking that step as we should--together, in a bipartisan fashion, and in complete agreement that when it comes to safeguarding our civil liberties, we have done what we could do, and we still have a great deal of work to do.

Madam Speaker, I urge my colleagues to support this measure, and I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, I include in the Record this letter from the chairwoman of the Committee on Oversight and Reform. House of Representatives, Committee on Oversight and Reform, Washington, DC, March 10, 2020. Hon. Jerrold Nadler, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC.

Dear Mr. Chairman: I am writing to you concerning H.R. 6172, the ``USA Freedom Reauthorization Act.'' There are certain provisions in the legislation which fall within the Rule X jurisdiction of the Committee on Oversight and Reform.

In the interest of permitting your Committee to proceed expeditiously on this bill, I am willing to waive this Committee's right to sequential referral. I do so with the understanding that by waiving consideration of the bill, the Committee on Oversight and Reform does not waive any future jurisdictional claim over the subject matters contained in the bill which fall within its Rule X jurisdiction. I request that you urge the Speaker to name Members of this Committee to any conference committee which is named to consider such provisions.

Please place this letter into the Congressional Record during consideration of the measure on the House floor. Thank you for the cooperative spirit in which you have worked regarding this matter and others between our respective Committees. Sincerely, Carolyn B. Maloney, Chairwoman.

BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Ms. JACKSON LEE. Madam Speaker, as a senior member of the Judiciary Committee, I am delighted to be able to join our Republican colleagues and Democratic colleagues and those of us who have advocated for a progressive mindset as it relates to civil liberties in this country in support of the reauthorization of the USA FREEDOM Act.

With that backdrop, however, I want to say to my good friend, he knows that the inspector general's report indicated that there was no political motive to the beginning of the investigation. And even though referrals have been made, none of the individuals he mentioned have been criminally prosecuted.

That is behind us, to a certain extent, but it is a good backdrop to make sure that anything we do, no matter who the individuals are, that we do it with the impeccable credentials of the Constitution, civil liberties, civil justice, and equality.

That is why I rise to support this legislation, although I know that a more detailed review might have warranted some additional fixes.

But I think it is important to take note that we do have the prohibition of the government from using section 215 to collect any records that would require a warrant if the information being assessed was for law enforcement purposes.

We are trying to contain and constrain. The bill requires the government to provide notice to individuals whose information is collected pursuant to 215, and it strengthens First Amendment protections by requiring the FISA court and the Foreign Intelligence Surveillance Court of Review to appoint an amicus curiae in any instance where an application by the government presents significant concerns about impinging on the First Amendment.

The bill also strengthens the amicus curiae's ability to protect privacy in civil liberties cases. As well, it directs the Privacy and Civil Liberties Oversight Board to conduct a study of the way the government's use of FISA authorities may be premised.

The bill improves transparency. The bill strengthens reporting requirements. It strengthens, as I said, the Privacy and Civil Liberties Oversight Board.

In further debates right after 9/11, I worked on a number of legislative initiatives, including one bill in 2013, the FISA Court and Sunshine Act, bipartisan legislation that provided much-needed transparency without compromising national security to the decisions, orders, and opinions of the Foreign Intelligence Surveillance Court.

That language is in this bill, the opportunity to review those decisions and for those decisions to be able to be reviewed as well.

I am a longstanding supporter of the USA FREEDOM Act, particularly because section 301 of that bill, which is not in this bill, has protections against reversed targeting.

Each moment that we have an opportunity to provide security for this Nation we also have the equal opportunity of infringing on the civil liberties of our fellow citizens. It is important today to stand on this floor and say to the American people that we do believe in their constitutional rights and the Bill of Rights. This legislation is to further contain those infringements and to protect the rights of our citizens.

Madam Speaker, I want my colleagues to support this legislation.

Madam Speaker, as a senior member of the Judiciary Committee and as an original co-sponsor of the USA Freedom Act, which stands for ``Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act'', I rise in support of the ``USA Freedom Reauthorization Act of 2020.''

I support the USA Freedom Reauthorization Act of 2020 for several reasons:

1. The bill continues to prohibit the NSA from collecting bulk phone records. By doing so, the government no longer has the authority to collect large amounts of call detail records on an ongoing basis. The Call Detail Records program not only resulted in the over-collection of records that the NSA did not have authority to receive but also resulted in several technical problems.

2. The USA Freedom Reauthorization Act prohibits the government from using Section 215 to collect any records that would require a warrant if the information being accessed were for law enforcement purposes. This provision ensures that Section 215 can keep pace with future developments in the law as courts interpret Carpenter v. United States and apply it to other contexts.

3. The bill requires the government to provide notice to individuals whose information is collected pursuant to Section 215 if the government plans to use that information, or any information derived from it, in a criminal case or other legal proceeding.

4. The USA Freedom Reauthorization Act strengthens First Amendment Protections by requiring the FISC and the Foreign Intelligence Surveillance Court of Review to appoint an amicus curia in any instance where an application by the government presents significant concerns about impinging on the First Amendment activities of Americans.

5. The bill contains other measures to strengthen amici curiae's ability to protect privacy in civil liberties in cases to which they are appointed.

6. The USA Freedom Reauthorization Act directs the Privacy and Civil Liberties Oversight Board to conduct a study of the way the government's use of FISA authorities may be premised on or may impact protected classes, including based on race, ethnicity, national origin, religion, or sex.

7. The bill improves transparency by requiring the declassification of significant FISC and FISC-R opinions within 180 days.

8. The USA Freedom Reauthorization Act strengthens the reporting requirement for Section 702 queries by eliminating an existing exemption for the FBI.

9. The bill strengthens the Privacy and Civil Liberties Oversight Board (PCLOB) by allowing members to be reappointed to consecutive terms and to continue serving after their terms have expired, should they so choose.

The USA Freedom Act was first passed in 2015 as the House's unified response to the unauthorized disclosures and subsequent publication in the media in June 2013, regarding the National Security Agency's collection from Verizon of the phone records of all of its American customers, which was authorized by the FISA Court pursuant to Section 215 of the Patriot Act.

Public reaction to the news of this massive and secret data gathering operation was swift and negative.

There was justifiable concern on the part of the public and a large percentage of the Members of this body that the extent and scale of this NSA data collection operation, which exceeded by orders of magnitude anything previously authorized or contemplated, may constitute an unwarranted invasion of privacy and threat to the civil liberties of American citizens.

To quell the growing controversy, the Director of National Intelligence declassified and released limited information about this program. According to the DNI, the information acquired under this program did not include the content of any communications or the identity of any subscriber.

The DNI stated that ``the only type of information acquired under the Court's order is telephony meta data, such as telephone numbers dialed and length of calls.''

The assurance given by the DNI, to put it mildly, was not very reassuring.

In response, many Members of Congress, including then Ranking Member Conyers, Mr. Sensenbrenner, and myself, introduced legislation in response to the disclosures to ensure that the law and the practices of the executive branch reflect the intent of Congress in passing the USA Patriot Act and subsequent amendments.

For example, I introduced H.R. 2440, the ``FISA Court in the Sunshine Act of 2013,'' bipartisan legislation, that provided much needed transparency without compromising national security to the decisions, orders, and opinions of the Foreign Intelligence Surveillance Court or ``FISA Court.''

Specifically, my bill required the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court (FISC), allowing Americans to know how broad of a legal authority the government is claiming under the PATRIOT ACT and Foreign Intelligence Surveillance Act to conduct the surveillance needed to keep Americans safe.

These requirements were then incorporated in substantial fl part in the USA Freedom Act, which required the Attorney General to conduct a declassification review of each decision, order, or opinion of the FISA court that included a significant construction or interpretation of law and to submit a report to Congress within 45 days.

As I indicated, perhaps the most important reasons for supporting passage of the USA Freedom Reauthorization Act is the prohibition on domestic bulk collection, as well as its enhanced First Amendment protections, both of which seek to protect American citizens from the NSA' s abuse of power through unlawful collection of personal data.

I was also a longstanding supporter of the USA Freedom Act, particularly because Section 301 of the bill contained protections against ``reverse targeting,'' which became law when an earlier Jackson Lee Amendment was included in H.R. 3773, the RESTORE Act of 2007.

``Reverse targeting,'' a concept well known to members of this Committee but not so well understood by those less steeped in the arcana of electronic surveillance, is the practice where the government targets foreigners without a warrant while its actual purpose is to collect information on certain U.S. persons.

One of the main concerns of libertarians and classical conservatives, as well as progressives and civil liberties organizations, in giving expanded authority to the executive branch was the temptation for national security agencies to engage in reverse targeting may be difficult to resist in the absence of strong safeguards to prevent it.

The Jackson Lee Amendment, preserved in Section 301 of the USA Freedom Act, reduced even further any such temptation to resort to reverse targeting by making any information concerning a United States person obtained improperly inadmissible in any federal, state, or local judicial, legal, executive, or administrative proceeding.

Madam Speaker, I noted in an op-ed published way back in October 2007, that as Alexis DeTocqueville, the most astute student of American democracy, observed nearly two centuries ago, the reason democracies invariably prevail in any military conflict is because democracy is the governmental form that best rewards and encourages those traits that are indispensable to success: initiative, innovation, courage, and a love of justice.

I support the USA Freedom Reauthorization Act of 2020 because it will help keep us true to the Bill of Rights and strikes the proper balance between cherished liberties and smart security.

I urge my colleagues to support the USA Freedom Reauthorization Act.

BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished gentleman from Illinois (Mr. Quigley).

BREAK IN TRANSCRIPT

Mr. NADLER. Madam Speaker, I yield myself the balance of my time.

I just want to say that I am in complete agreement with the ranking minority member that this is a very good bill, that we do a lot of things that we ought to do, that we don't do a lot of things, unfortunately, that we should do, but we did what we could.

Undoubtedly, the ranking member and I have different ideas. Some of the things which he thinks we did not enough I think we did too much and vice versa, but we did have some of the things he thinks that we shouldn't have done I wish we had done. But we did manage to reach agreement.

As I said, I believe it is a very good bill. It is not as protective of civil liberties as I would like to see it, but we got as far as we possibly could, and so I urge everyone to vote for this bill.

I know there will be some dissent on our side of the aisle based on civil liberties concerns. I can only say that, with most of those concerns that I have heard voiced, I agree with them, but we just couldn't get them.

Before I close, I want to recognize the staff on both sides of the aisle who have worked around the clock for the past few weeks to reach a compromise and bring this bill to the floor.

Although there are too many to name here, I should single out the following individuals: Aaron Hiller, Sophia Brill, and Sarah Istel from my staff; Wells Bennett, Nicolas Mitchell, Raffaela Wakeman, and William Wu from the Permanent Select Committee on Intelligence majority; Ryan Breitenbach and Bobby Parmiter from the Judiciary Republican side; Stephen Castor and Tyler Grimm from Mr. Jordan's staff; and Laura Casulli, Meghan Green, and Allen Souza for the HPSCI Republicans.

The country should be proud of what we have all accomplished here, what they have accomplished here, and I thank each and every one of them.

Madam Speaker, in closing, I will simply say that it is our responsibility to work across the aisle and across the branches of the government to bring our national security in line with our values.

We have done so here, but that work is an ongoing project. It must not end today, because we have a long way to go yet.

Madam Speaker, I urge my colleagues to support the USA FREEDOM Reauthorization Act, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Source