An amendment to the USA Freedom Act, which was unanimously voted out of the House Judiciary Committee Wednesday, appeared to pave the way to avoid a clash between it and a similar bill from the House Intelligence Committee. The amendment allows the government to collect phone data on U.S. citizens in cases where "reasonable, articulable suspicion" of wrongdoing can be proved, which would in turn allow the government to collect metadata on individuals who are two "hops," or degrees of separation, from the suspect.
House Intelligence Committee Chairman Mike Rogers, R-Mich., a key defender of the NSA's surveillance and a co-author of the competing bill, called the change a "huge improvement" and hinted he would sink his own legislation in favor of the USA Freedom Act if passed.
Judiciary Committee leadership on both sides of the aisle touted the bipartisan effort to craft legislation that could make it through both houses and to the president's desk for signature, incorporating some of the recommendations made by the president's panel in December. Additional effort was made to please both those who supported the NSA surveillance, if perhaps not the method of collection revealed through leaks of classified information by former NSA contractor Edward Snowden last year, and those who decried it as a gross violation of privacy and civil liberties.
"Today's bill unequivocally ends bulk collection," said bill sponsor (and USA Patriot Act author) Jim Sensenbrenner, R-Wis. "Let me repeat, there is no bulk collection."
The congressman's comments were likely directed at critics of the amendment who interpreted the language of the amendment would reopen the very loophole originally exploited by the NSA to conduct so-called "back-door" searches of American citizens' data.
"It ends up basically outsourcing mass surveillance strategy," explained Thomas Drake, a former NSA executive who faced espionage charges in 2010 for exposing waste and privacy violations at the agency, in an interview Tuesday.
Drake said he had supported the USA Freedom Act, changed his mind with the introduction of the manager's amendment.
"It's totally compromised," he said. "That's faux reform, that's kabuki dance reform. That's shadow reform."
Rep. Zoe Lofgren, D-Calif., perhaps trying to give Sensenbrenner an opportunity to reverse course, offered an amendment to the amendment that suggested omitting the content collection language was a "clerical error." She later withdrew her suggestion after Committee Chair Bob Goodlatte, R-Va., said he "wasn't aware" of a such a mistake.
Lofgren also repeatedly tried to strengthen language in the bill to strengthen the bill's protections against unreasonable searches and seizures, but was repeatedly shot down by the committee.
"Under current law, the NSA can search the communications they collect on U.S. persons without a warrant," she said. "The bill that Mr. Sensenbrenner introduced, the manager's amendment stripped out the new requirements that were in the bill."
"If we leave this loophole in the manager's amendment, we're going to be right back where we are today with the same problem," she said.