[Congressional Record Volume 161, Number 92 (Wednesday, June 10, 2015)]
[House]
[Pages H4127-H4133]
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2016
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Amendment Offered by Mr. Massie
Mr. MASSIE. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will report the amendment.
The Clerk read as follows:
At the end of the bill (before the short title), insert the
following new section:
Sec.__. (a) Except as provided in subsection (b), none of
the funds made available by this Act may be used by an
officer or employee of the United States to query a
collection of foreign intelligence information acquired under
section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a) using a United States person
identifier.
(b) Subsection (a) shall not apply to queries for foreign
intelligence information authorized under section 105, 304,
703, 704, or 705 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805; 1842; 1881b; 1881c; 1881d), or title
18, United States Code, regardless of under what Foreign
Intelligence Surveillance Act authority it was collected.
(c) Except as provided for in subsection (d), none of the
funds made available by this Act may be used by the National
Security Agency or the Central Intelligence Agency to mandate
or request that a person (as defined in section 101(m) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(m))) alter its product or service to permit the
electronic surveillance (as defined in section 101(f) of such
Act (50 U.S.C. 1801(f))) of any user of such product or
service for such agencies.
(d) Subsection (c) shall not apply with respect to mandates
or requests authorized under the Communications Assistance
for Law Enforcement Act (47 U.S.C. 1001 et seq.).
Mr. MASSIE (during the reading). Mr. Chair, I ask unanimous consent
to dispense with the reading of the amendment.
The Acting CHAIR. Is there objection to the request of the gentleman
from Kentucky?
There was no objection.
The Acting CHAIR. Pursuant to House Resolution 303, the gentleman
from Kentucky and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Kentucky.
Mr. MASSIE. Mr. Chairman, the American people don't want to be spied
on by their own government. Our Founding Fathers included the Fourth
Amendment for a reason: to require probable cause and a warrant before
the government and government agents can snoop on anyone.
During the 113th Congress, the House of Representatives passed the
bipartisan amendment I am offering today by a 293-123 vote. This year,
our bipartisan group is reuniting once again to shut down
unconstitutional surveillance that does not meet the expectations of
our constituents or the standards required by our Constitution.
Our amendment shuts one form of backdoor surveillance by prohibiting
warrantless searches of government databases for information that
pertains to U.S. citizens.
The Director of National Intelligence has confirmed that the
government searches vast amounts of data, including the content of
emails and telephone calls without individual suspicion or probable
cause.
{time} 0120
At this time, I submit for the Record a letter from the Director of
National Intelligence, which confirms this warrantless spying.
Director of National Intelligence,
Washington, DC, March 28, 2014.
Hon. Ron Wyden,
U.S. Senate,
Washington, DC.
Dear Senator Wyden: During the January 29, 2014, Worldwide
Threat hearing, you cited declassified court documents from
2011 indicating that NSA sought and obtained the authority to
query information collected under Section 702 of the Foreign
Intelligence and Surveillance Act (FISA), using U.S. person
identifiers, and asked whether any such queries had been
conducted for the communications of specific Americans.
As reflected in the August 2013 Semiannual Assessment of
Compliance with Procedures and Guidelines issued Pursuant to
Section 702, which we declassified and released on August 21,
2013, there have been queries, using U.S. person identifiers,
of communicatons lawfully acquired to obtain foreign
intelligence by targeting non U.S. persons reasonably
believed to be located outside the U.S. pursuant to Section
702 of FISA. These queries were performed pursuant to
minimization procedures approved by the FISA Court as
consistent with the statute and the Fourth Amendment. As you
know, when Congress reauthorized Section 702, the proposal to
restrict such queries was specifically raised and ultimately
not adopted.
For further assistance, please do not hesitate to contact
Deirdre M. Walsh in the Office of Legislative Affairs.
Sincerely,
James R. Clapper.
Mr. MASSIE. Mr. Chairman, the Director of the FBI has also confirmed
that he uses the information to build criminal cases against U.S.
persons, but the Director of National Intelligence and the FBI are not
above the Fourth Amendment, and this practice should end.
At this time, I yield 1\1/2\ minutes to the gentlewoman from
California (Ms. Lofgren), my colleague.
Ms. LOFGREN. Mr. Chairman, I thank the gentleman for yielding in
[[Page H4131]]
support of the Massie-Lofgren amendment.
As mentioned, the declassified FISA court decision has indicated that
substantially more warrantless communications are collected through 702
than 215.
We had a bill up to recently, the USA FREEDOM Act, that alleged that
we were stopping bulk collection, but we didn't. During the markup of
that bill in the Judiciary Committee, we offered this amendment; and
everyone on the committee, including the chairman of the committee,
said they were for this provision, but it wasn't the right time. Well,
this is the right time.
That is why we have this broad support. It is the Massie-Lofgren-
Sensenbrenner-Conyers-Poe-Gabbard-Jordan-O'Rourke. It is broad; it is
bipartisan. It is supported by groups like the American Civil Liberties
Union, as well as the Campaign for Liberty, Demand Progress, as well as
FreedomWorks. This has broad bipartisan support.
The American people deserve this. When we have an interest in
querying the 702 database for American citizens, get a warrant. That is
what the Fourth Amendment requires.
Finally, this closes the opportunity to require backdoors on
technology. As has been mentioned earlier by technologists and
scientists, to do that just opens a door wide open for the bad guys and
the hackers to break in.
Mr. MASSIE. Mr. Chairman, as my colleague stated, my amendment also
prohibits NSA and the CIA from placing backdoors into commercial
products.
This is important because, in December of 2013, it was reported that
a U.S. security company had received $10 million from the NSA to use a
flawed encryption method. Our government should strengthen technology
that protects our privacy, not take advantage of it.
At this time, I reserve the balance of my time.
Mr. FRELINGHUYSEN. Mr. Chairman, I claim the time in opposition.
The Acting CHAIR. The gentleman from New Jersey is recognized for 5
minutes.
Mr. FRELINGHUYSEN. Mr. Chairman, this amendment restricts the use of
section 702 of FISA, which is not currently up for reauthorization.
The law does not sunset until December of 2017. Any reform to this
authority should be fully vetted by the authorizing committees and not
inappropriately attached to our spending bill.
This amendment would impose greater restrictions on the intelligence
community's ability to protect national security and create an
impediment to our government's ability to locate threat information
already in our government's possession. Such an impediment would
potentially put American lives at risk of another terrorist attack.
Colleagues, the House recently passed H.R. 3361, the USA FREEDOM Act,
with overwhelmingly bipartisan support. It was signed into law last
week. This amendment seeks to relitigate an issue fully litigated in
the drafting of that legislation. A similar amendment was offered and
rejected by the House Judiciary Committee during its markup of that
bill.
The USA FREEDOM Act does include two reforms related to section 702
collection. These were reforms properly considered during the
authorization process, not slapped on an appropriations bill without
consideration and deliberation.
The first limits the government's use of information about U.S.
persons that is obtained under section 702 that the FISA court later
determines to be unlawful. The second provision requires the Director
of National Intelligence to report annually the number of U.S. person
queries under section 702.
Under current law, a U.S. person can only be the target of an
intelligence gathering under FISA pursuant to an individualized court
order based upon probable cause. The intelligence community is allowed
to query communications it legally collects from foreigners for
information about a U.S. person, so long as the query itself has
foreign intelligence value.
This is no different from traditional criminal law. If the government
has a legal wiretap on a drug dealer's cell phone and records a
conversation where a second drug dealer talks about committing a
murder, police can use that phone call as evidence against a second
drug dealer in a murder trial. What matters is that the initial
wiretap--or, here, the initial targeting of the foreign terrorist--was
legal.
Colleagues, this is an issue critical to our national security, and
it is complicated. Any changes to section 702 should be fully evaluated
and voted on using the authorization committee process, which is the
appropriate channel for considered review and debate on this critical
issue.
Unfortunately, this amendment has not benefited from the work of the
authorization process and would potentially put American lives at
greater risk for another terrorist attack. That is not a risk many of
us or certainly I am willing to take.
For this reason and many others, I strongly oppose this amendment,
and I urge my colleagues to do the same.
I yield back the balance of my time.
Mr. MASSIE. Mr. Chairman, how much time do I have remaining?
The Acting CHAIR. The gentleman from Kentucky has 1\1/2\ minutes
remaining.
Mr. MASSIE. At this time, I yield 45 seconds to the gentlewoman from
California (Ms. Lofgren).
Ms. LOFGREN. Mr. Chairman, I thank the gentleman for yielding.
The unclassified FISA court reported that the 702 search had, in
fact, scooped up vast amounts of wholly domestic information. How does
this work?
The upstream communications are tapped into by the NSA. In the
digital world, your digital information, your domestic information is
stored throughout the world. It is scooped up, and it is used.
The FBI has indicated it is used and the DNI has indicated it is used
for wholly domestic purposes without a warrant routinely thousands,
tens of thousands of times. It is in violation of the Fourth Amendment,
and it must stop.
I would just say, on the Judiciary Committee, every member of the
committee who declined to support this amendment said they were for the
amendment and said we should offer it to the DOD appropriations bill.
Mr. MASSIE. Mr. Chairman, now, it has been said here tonight that
this is not the time or the place to address these problems with 702,
but, look, we have a constitutional crisis, and this was the excuse we
were given in the Judiciary Committee when my colleague tried to get
the amendment allowed there.
It was the same excuse I was given in the Rules Committee when we had
an opportunity to address this, and I would maintain that 2017, 2 years
from now, is too long to go in this constitutional crisis situation
where we recognize something that illegal and/or unconstitutional is
occurring; yet we don't do anything about it. This is the time to do
something about it; this is the place to do something about it.
I urge my colleagues to vote for this amendment, and I yield back the
balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Kentucky (Mr. Massie).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. MASSIE. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Kentucky
will be postponed.
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