[Congressional Record Volume 162, Number 95 (Wednesday, June 15, 2016)]
[House]
[Pages H3892-H3904]
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2017
The SPEAKER pro tempore. Pursuant to House Resolution 783 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the further consideration of the bill,
H.R. 5293.
[...]
Amendment No. 31 Offered by Mr. Massie
The Acting CHAIR. It is now in order to consider amendment No. 31
printed in House Report 114-623.
Mr. MASSIE. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is 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.).
The Acting CHAIR. Pursuant to House Resolution 783, the gentleman
from Kentucky (Mr. Massie) and a Member opposed each will control 5
minutes.
[[Page H3894]]
The Chair recognizes the gentleman from Kentucky.
Mr. MASSIE. Mr. Chairman, our Founding Fathers included the Fourth
Amendment in our Constitution for a reason: to require probable cause
and a warrant before the government and government agents can spy on
any of its citizens. Our Founding Fathers were fed up, and, frankly, I
think our citizens are fed up with being spied on by the government.
I am here to offer an amendment today that would prevent warrantless
surveillance of Americans. I am offering it with many of my colleagues.
I want to mention that this amendment has passed this House, this body,
twice previously: once by 293-123, and another time by 255-174. It
enjoys broad bipartisan support.
My cosponsors are Mr. Jordan, Mr. O'Rourke, Mr. Amash, Representative
Pocan, Representatives Nadler, Gabbard, Farenthold, Ted Lieu of
California, Issa, Butterfield, Labrador, Gosar, DelBene, Poe of Texas,
Conyers, Sensenbrenner, and Ms. Zoe Lofgren from California.
Mr. Chairman, I yield 2 minutes to the gentlewoman from California
(Ms. Lofgren).
Ms. LOFGREN. Mr. Chairman, warrantless bulk collection of U.S. person
communications and information was not ended with the USA FREEDOM Act.
Twice in the last 2 years the House voted overwhelmingly to close two
loopholes, but House leadership blocked us. The first back door will be
shut by prohibiting search of government databases for information
pertaining to U.S. citizens without a warrant. You can get the
information, but you have to get a warrant.
In October of 2011, in a declassified FISA court decision, we learned
that tens of thousands of wholly domestic communications--which are not
even allowed to be collected under 702--have been collected. We need to
make sure that, when you look for an American in that database, you get
a warrant as the Fourth Amendment requires.
The second door to be shut prohibits the government from coercing
companies into weakening security protections by creating back doors in
products to make surveillance easier.
What is encryption? It is sophisticated computer code that is the
most powerful tool we have for preventing outsiders from gaining entry
into digital systems. Encryption protects the power grid, the air
traffic control system, and your smartphone. Even if a weakness in
encryption is promoted and created with good intentions, it is only a
matter of time until a hacker finds and exploits it.
Such flaws put data security of every person and business--and
really, the security of the United States--at risk. Our government
should strengthen the technology that protects our privacy, our
businesses, and our country--not take advantage of it.
The Massie-Lofgren amendment will make America safer, and it will
defend the Fourth Amendment.
Mr. Chairman, I urge its adoption.
Mr. MASSIE. Mr. Chairman, I thank the gentlewoman from California.
May I inquire as to how much time I have remaining?
The Acting CHAIR. The gentleman from Kentucky has 2 minutes
remaining.
Mr. MASSIE. Mr. Chairman, I reserve the balance of my time.
Mr. FRELINGHUYSEN. Mr. Chairman, I rise in opposition to the
amendment.
The Acting CHAIR. The gentleman from New Jersey is recognized for 5
minutes.
Mr. FRELINGHUYSEN. Mr. Chairman, this amendment would impose greater
restrictions on the intelligence community's ability to protect our
national security and create an impediment to the government's ability
to locate threat information already in its possession. Such an
impediment, therefore, would put a lot more American lives at risk both
at home and abroad.
Colleagues, as recent events have tragically reminded us, this issue
is critical to our national security. Lawful queries can enable
analysts to identify potential terror plots, to identify foreign
nations trying to hack into our networks, to locate foreign
intelligence officers spying within our borders, and, yes, to locate
hostage victims.
These authorities were fully considered, as they should be, and we
will hear in a moment from Chairman Goodlatte during the development
and the consideration of the USA FREEDOM Act.
Mr. Chairman, I yield such time as he may consume to the gentleman
from Indiana (Mr. Visclosky), my ranking member.
Mr. VISCLOSKY. Mr. Chairman, I appreciate the time and simply
associate myself with the chairman's remarks. I am opposed to the
amendment. I do appreciate the seriousness of people's opinion on both
sides of this issue.
I am an appropriator. I don't have a complete allergic reaction to
authorizing in an appropriation bill, but given the seriousness of this
issue and the complexity of it, I don't think this is the right venue
to make that decision. It should be done in the authorizing process.
I thank the gentleman for yielding.
Mr. FRELINGHUYSEN. Mr. Chairman, I reserve the balance of my time.
Mr. MASSIE. Mr. Chairman, I would just like to reiterate that all
this amendment basically does is reassert the Fourth Amendment to the
Constitution. All of the tools currently available to our intelligence
agencies and those that keep us safe in the United States would still
be available.
The only thing that changes after this amendment passes is that the
warrant is required to search for information on Americans. It has been
this way constitutionally since the beginning of our country. We are
just trying to reassert that. Let them have all the tools they have
today; just require a warrant if you want to search for information on
Americans.
Mr. Chairman, I reserve the balance of my time.
Mr. FRELINGHUYSEN. Mr. Chairman, I yield 1\1/2\ minutes to the
gentleman from Utah (Mr. Stewart), a member of the Intelligence
Committee.
Mr. STEWART. Mr. Chair, I rise today to oppose the Massie amendment
and the inaccurate accusations that underlie it. Let me restate that.
The supposition of this amendment is based off a fundamental
misunderstanding of intelligence operations.
Contrary to rumor, it is illegal to use 702 surveillance authorities
to spy on Americans. It is subject to multiple layers of oversight, and
section 702 is an extremely powerful tool that has proven effective in
disrupting terror plots, including, for one example, the 2009 plot to
bomb the New York City subway. If this amendment were in effect today,
the intelligence community would be unable to query the 702 database
for the names of the Orlando nightclub attacker, for his wife, or even
the nightclub itself.
We should be focusing on thwarting terror attacks, not on thwarting
the ability of intelligence professionals to investigate and to stop
them.
Mr. Chairman, I urge Members to prioritize the safety of U.S.
citizens and to reject false allegations. Let me say that one more
time: false and irresponsible allegations of government spying on
Americans. We can scarcely afford to hamstring our intelligence
community as it investigates these horrific shootings and tries to
prevent similar plots from reaching fruition.
All of us want to protect our privacy and our constitutional rights.
I want to protect our privacy and our constitutional rights. But
objections to intelligence operations must be based on facts and not
rumors or misunderstandings. Limiting access to critical law
enforcement tools to stop these plots would directly put Americans in
danger.
Mr. MASSIE. Mr. Chairman, how much time do I have remaining?
The Acting CHAIR. The gentleman from Kentucky has 1\1/4\ minutes
remaining.
Mr. MASSIE. Mr. Chairman, I include in the Record a letter from the
Director of National Intelligence that shows that Americans are being
spied on without a warrant using the 702 program.
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
[[Page H3895]]
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 communications 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, I reserve the balance of my time.
Mr. FRELINGHUYSEN. Mr. Chairman, who has the right the close?
The Acting CHAIR. The gentleman from New Jersey has the right to
close.
Mr. FRELINGHUYSEN. Mr. Chairman, I reserve the balance of my time.
Mr. MASSIE. Mr. Chairman, I yield 30 seconds to the gentleman from
Texas (Mr. Poe).
Mr. POE of Texas. Mr. Chairman, our government spies on Americans.
Section 702 was designed to go after the bad guys overseas, but it is
being used to collect communications of Americans in America without a
search warrant under the Fourth Amendment.
The amendment that the gentleman from Kentucky has introduced does
something very basic. It says the Fourth Amendment will apply to a
702(a). If you have got a search warrant, go see a judge like I used to
be; and if you have probable cause, then let a judge sign it. If you
don't have probable cause, then you don't get a warrant. That is all it
does.
It says the Constitution must apply to Americans, and fear tactics--I
am sorry--on the other side don't change the facts. Get a warrant if
you have probable cause. That is all the gentleman from Kentucky's
amendment does.
Mr. MASSIE. To the judge's point, I would say that this doesn't take
any tools away from those who want to investigate what happened in
Orlando, none whatsoever. That is a mischaracterization, a complete
mischaracterization of this amendment. You obviously can get a warrant
on the perpetrator of this crime. So it would be wrong to characterize
it in the way it is being characterized. It is unfortunate that my
colleagues would take advantage of that situation to try and motivate
people to vote ``no'' against this amendment.
Mr. Chairman, I urge my colleagues to vote ``yes'' on this amendment.
It doesn't take away any of the tools. Read the amendment; you will
find out. Just get the warrant; do the search.
Mr. Chairman, I yield back the balance of my time.
Mr. FRELINGHUYSEN. Mr. Chairman, before I yield my time, how much
time remains on my side?
The Acting CHAIR. The gentleman from New Jersey has 2 minutes
remaining.
Mr. FRELINGHUYSEN. Mr. Chairman, I yield the remainder of my time to
the gentleman from Virginia (Mr. Goodlatte), the chairman of the House
Judiciary Committee.
Mr. GOODLATTE. Mr. Chairman, I thank the chairman of the
subcommittee.
Mr. Chairman, the tragic mass shooting in Florida Sunday morning is
but the latest in a string of terror attacks here in America. Sadly,
these plots have not been carried out by foreign terrorists but by
Americans against Americans, on American soil.
We are all searching for the same answer: What motivated Omar Mateen
to kill?
Investigators are still combing through evidence to determine whether
Mateen was in contact with known or suspected terrorists. This
amendment prohibits the government from searching data already in its
possession, collected lawfully under section 702 of FISA, to determine
whether Omar Mateen was in contact with foreign terrorists overseas.
Despite the characterization by proponents of the amendment that a
search could occur if the government has obtained a FISA or criminal
probable cause-based order, the exception does not, in fact, authorize
such a query. Section 702 and the other provisions of the FISA
Amendments Act are not set to expire until December 31 of next year.
The House Judiciary Committee shares the concerns of all here that we
protect all Americans' rights under the Fourth Amendment of the United
States Constitution. The committee has engaged and will continue to be
engaged in robust oversight of the programs operated under the act.
A floor amendment to a spending bill debated for 10 minutes is not
the appropriate venue for Congress to alter our intelligence gathering
capabilities. This complicated issue must be closely examined and
appropriately vetted by the committees of jurisdiction.
Sunday's deadly attack proves once again that the terror threat has
not dissipated. The FBI has roughly 1,000 active ISIS probes in the
United States, and these are probes into those we know about. Now is
not the time to block the use of a critical investigative tool.
Mr. Chairman, I urge my colleagues to oppose this amendment, and I
thank the gentleman for yielding.
Mr. FRELINGHUYSEN. 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.
[...]
