[Congressional Record Volume 162, Number 95 (Wednesday, June 15, 2016)]
[Pages H3892-H3904]


  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 
       (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 

[[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 
  Mr. MASSIE. Mr. Chairman, I reserve the balance of my time.
  Mr. FRELINGHUYSEN. Mr. Chairman, I rise in opposition to the 
  The Acting CHAIR. The gentleman from New Jersey is recognized for 5 
  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 
  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 
  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 
  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 
  Mr. MASSIE. Mr. Chairman, how much time do I have remaining?
  The Acting CHAIR. The gentleman from Kentucky has 1\1/4\ minutes 
  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.
                                                 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 
  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 
  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 
  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 
  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.