[Congressional Record Volume 161, Number 92 (Wednesday, June 10, 2015)]
[Pages H4127-H4133]



                    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 
       (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 

                              {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.
                                                 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 
  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 
  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 
  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 
  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 
  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 
  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.