May 05, 2014
by Kate Tummarello, The Hill

The battle over the National Security Agency (NSA) is escalating in the House, with rival panels moving this week to mark up legislation that would change the agency’s controversial surveillance programs.

Leaders of the House Judiciary and Intelligence committees on Monday announced plans to proceed with bills that would limit the NSA’s sweeping surveillance programs.

The markups could force the hand of House Republican leaders, who will have to decide which proposal — if any — to bring to the floor.

In the past, Speaker John Boehner (R-Ohio) has referred to the “important progress” on the Intelligence Committee’s bill, but he has yet to indicate whether it is the proposal he favors.

One Democratic aide said the committees’ dueling actions might force House leadership, which has been “been unwilling to engage in the back and forth,” to take sides.

“It’s clear that both chairmen want to protect their committee's jurisdiction, and ultimately it will be up to leadership to sort it out,” the aide said. 

“This might be the impetus they didn’t want to have that makes them finally get involved.”

Both panels are proposing changes to the NSA’s bulk collection of phone records, which was revealed last year by former NSA contractor Edward Snowden.

Each bill would bar the NSA from storing the phone data, instead leaving it in the hands of the private sector. The NSA would then need a court order to search the databases.

But the bills differ dramatically in how they subject NSA surveillance to oversight from the secretive Foreign Intelligence Surveillance Court (FISC).

The Judiciary panel’s bill — the USA Freedom Act by former Chairman and Patriot Act author Rep. James Sensenbrenner Jr. (R-Wis.) — would require the NSA to obtain FISC approval before every search.

In contrast, the Intelligence panel’s bill — the FISA Transparency and Modernization Act from Chairman Mike Rogers (R-Mich.) and ranking member Dutch Ruppersberger (D-Md.) — would require the NSA to get FISC approval before starting any new surveillance programs and would allow the surveillance court to retroactively deny the NSA's searches.

Rogers and Ruppersberger have said that requiring a court order before the NSA conducts a search would slow down agents trying to protect the country against terrorists.

The committees are pressing forward with their bills more than a month after President Obama called for the NSA to end the collection and storage of information about people’s phone calls.

Despite the focus on reform, the markups announced Monday came as a surprise.

The USA Freedom Act had been sitting untouched in the Judiciary Committee since October, despite garnering the support of 143 lawmakers and endorsements from the tech industry and privacy advocates.

But a substitute amendment that Sensenbrenner negotiated with Rep. Bob Goodlatte (R-Va.) and ranking member John Conyers Jr. (D-Mich.) appeared to be the breakthrough that was needed to get the bill to the full committee.

Sensenbrenner, Conyers, Goodlatte and the three other members sponsoring the amendment said in a joint statement that the amendment represents a hard-won compromise on the surveillance issue.

“Over the past several months, we have worked together across party lines and with the administration and have reached a bipartisan solution that includes real protections for Americans’ civil liberties, robust oversight and additional transparency, while preserving our ability to protect America’s national security,” the group of lawmakers said.

Sensenbrenner’s amendment would do away with some of the bill’s transparency measures, including a provision that would have allowed companies to report on the scope of government requests for user data more openly.

Those measures were widely supported by privacy advocates and tech companies, which are eager to win back trust from users worried about their data falling into the NSA’s hands.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) — who sponsored the USA Freedom Act in the upper chamber — congratulated the House Judiciary Committee members for finding a compromise but noted the amendment’s changes.

While he applauded the bill for ending “dragnet collection” programs, Leahy said in a statement that he hopes “eventually it will retain some important reforms” to increase transparency around U.S. surveillance.

Kevin Bankston, policy director at the New America Foundation’s Open Technology Institute, applauded the committee’s movement but said in a statement that he is “dismayed” with the removal of the transparency measures.

Bankston urged Judiciary Committee members “to ensure that those reforms make their way back into the bill.”

Meanwhile, in the Intelligence Committee, Rogers and Ruppersberger pitched their bill ahead of a scheduled markup on Thursday as striking a balance between privacy and national security.

“We believe this bill responds to the concerns many members of Congress have expressed and can be the compromise vehicle to reform FISA [the Foreign Intelligence Surveillance Act] while preserving important counterterrorism capabilities,” the pair said in a statement.

Advocates say that, despite the fight over jurisdiction, the burst of movement at the committee level is a step in the right direction.

“It’s a lot better than when we started,” said Andy Halataei, director of government relations for the Information Technology Industry Council.

And despite the differences in the committees’ approaches, there are similarities between the competing House plans, as well as with the ideas Obama outlined earlier this year.

“All stakeholders are coalescing” around certain proposals, such as allowing the companies rather than the NSA to store the data, Halataei said.

“We’re a lot closer to finding a policy consensus.”

Halataei said that, while the upcoming elections create an impending deadline as the committees look to advance their bills to the floor, lawmakers might be eager to have an anti-surveillance vote under their belts before Election Day.

“Members want to point to a vote,” he said.

Without legislative action, the controversial NSA programs will expire in June of 2015, which means that “this could be a discussion that continues into early next year,” one tech lobbyist said.

Unlike other bills that are dependent on the congressional calendar, “the deadlines are different” for surveillance programs because of their built-in expiration dates, the lobbyist said.


This article can also be found in The Hill.