Good news from Congress

Congressional Record June 2, 2015, House of Representatives

PDF Page 81, Page H3725

AMENDMENT OFFERED BY MR. POE OF TEXAS

Mr. POE of Texas. I have an amendment at the desk regarding the Fourth Amendment to the Constitution, with multiple cosponsors.

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: SEC. ll. (a) Except as provided by subsection (b), none of the funds made available by this Act for the Department of Justice or the Federal Bureau of Investigation may be used 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 the product or service of the person 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. (b) Subsection (a) 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. POE of Texas (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 Texas? There was no objection.

The Acting CHAIR. Pursuant to House Resolution 287, the gentleman from Texas and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Texas. Mr. POE of Texas.

Mr. Chairman, I have a simple, straightforward amendment to protect the Fourth Amendment of the U.S. Constitution. This is a very similar amendment that passed DOD Appropriations last year. I would like to thank Representatives LOFGREN, MASSIE, CONYERS, AMASH, NADLER, FARENTHOLD, POLIS, LABRADOR, and LIEU for working with me as cosponsors on this important amendment. James Comey, the Director of the Federal Bureau of Investigation, recently asked Congress to update the law to ensure that the Federal Government can access information from Americans’ cell phones and personal electronic devices in the future. Many U.S. technology companies have also been approached by the government agencies, urging them either through intimidation or just request to create back doors on their products’ encryption system so the government can access it later down the road. We have all learned recently about the government’s abuse of section 215 under the PATRIOT Act and abuse under section 702 of the FISA Amendments Act. Basically what this amendment does, Mr. Chairman, is prohibit the government from going to Apple, for example, and telling Apple that they want an encryption in cell phones that they sell to Americans, an encryption that would allow the FBI to have access to this information, which would include not just conversations, not just include emails, but it would also include text messaging as well. This is a straightforward amendment. This prohibits the Federal Government—specifically, the FBI—from going in and receiving this information. Privacy is important. It is under our Constitution. There should be no doubt that the Federal Government should have no access to our cell phones and the information that is in those cell phones. That is what this amendment does. I reserve the balance of my time.

Mr. CULBERSON. I ask unanimous consent to claim the time in opposition, but I do not oppose the gentleman’s amendment. I agree with his amendment and encourage the House to support it.

Ms. LOFGREN. Mr. Chairman, reserving the right to object.

The Acting CHAIR. The gentlewoman from California is recognized on her reservation. Ms. LOFGREN.

Mr. Chairman, I had also sought to seek the time in opposition, although I also do not oppose the amendment.

Mr. CULBERSON. Does the gentlewoman support the amendment? Ms. LOFGREN. I support the amendment, as does the gentleman.

Mr. CULBERSON. That was my point. I think it is important. We are here in this Chamber looking at George Mason, who refused to sign the Constitution because he was so concerned that the power of the Federal Government would just absolutely obliterate——

The Acting CHAIR. The gentleman will suspend. Does the gentlewoman withdraw her reservation?

Ms. LOFGREN. Mr. Chairman, further reserving, I was wondering if the Democratic side of the aisle might be able to split the time. That is why I was reserving the right to object.

Mr. CULBERSON. Mr. Chairman, I would be happy to split the time with the gentlewoman. I am claiming the time in opposition, although I do not oppose it. The gentleman still has some time remaining on his initial time. I will yield in just a moment, but I really think it is important in this age of electronic communication that we in the Congress debate and be keenly aware of the new boundaries.

The Acting CHAIR. The gentleman will suspend.

Ms. LOFGREN. I withdraw my reservation.

The Acting CHAIR. The reservation is withdrawn. Without objection, the gentleman from Texas (Mr. CULBERSON) is recognized for 5 minutes. There was no objection.

Mr. CULBERSON. Mr. Chairman, my neighbor and good friend, Judge TED POE, brings a very important point to the floor tonight. In this new era of expanding technology that now intrudes on every aspect of our lives, it is very important to remember the admonition that Benjamin Franklin gave us—that those who would surrender a little freedom to gain a little safety are soon going to find themselves with neither. I do find it instructive that we are here on this House floor looking at George Mason, who is on the right here, who refused to sign the Constitution because he was so concerned the Federal Government would become omnipotent and obliterate the rights of individuals and the rights of the States to control those issues that deal exclusively with the States. My favorite Founding Father, Thomas Jefferson, was keenly aware of and concerned about the power of the Federal Government. We are entering into a whole new era now where the government has got the ability to intrude on every aspect of our life. I share Judge POE’s concern. I support his amendment, and I urge the House to support it. If the FBI has a court order, if the National Security Agency gets a court order, I believe they could get access to what they need to get access to. Just like cracking a safe. In fact, I asked this question, if I could, of Director Comey in front of our subcommittee. He said these new iPhones—I dropped my iPhone 5 and had to get a 6—he said these can’t be cracked. So, therefore, you would have to open them up like you would a safe, as you had to order safes, I bet, opened on occasion, Judge POE. So I agree with the amendment, and I yield the balance of my time to the gentlewoman from California (Ms. LOFGREN).

Ms. LOFGREN. I thank the gentleman for yielding. As Mr. POE recognized, this is a very diverse group of authors who don’t agree on everything, but this is very important for a reason. First, it is fundamental that our privacy be protected; that the Fourth Amendment be adhered to. Secondly, we all know—and if you ask any computer scientist, they will tell you—that once the vulnerability is introduced for a good reason, it is available for hacking for very bad reasons. Finally, for competitiveness. Think how competitive it is to sell an American product around the world when everyone knows that it is compromised. Not a really good marketing tool. Last year, as Mr. POE mentioned, we had almost precisely this amendment on the floor as an amendment to the DOD appropriations. What was the vote on that amendment? It was 293–123; overwhelming. So I am hoping that Members will not flip-flop, that they will, in fact, vote the way they did last year. And I will just go a little trip down memory road. When I was first elected to the Congress, I took my oath of office January 4, 1995, and I met BOB GOODLATTE for the very first time. And he and I went all over this Congress to try and work on decontrol of encryption. Although a lot of people we talked to in 1995 had no idea what we were talking about when we talked about encryption, ultimately that bipartisan effort was successful. We must not let that successful effort to protect privacy, to protect technology, be eroded at this point. So I look forward to a very strong vote on this. I think it is important that we have a vote, even though there is agreement, just to send the message to the other body how serious that we are.

Mr. CULBERSON. Our most important right as Americans is to be left alone. If you are a law-abiding American, you are secure in your home and your possessions. Your home is your castle.

Ms. LOFGREN. Will the gentleman yield? Mr. CULBERSON. I yield to the gentlewoman from California.

Ms. LOFGREN. We might not agree on everything, but I think we agree on the Fourth Amendment. So this is a great day for this body to come together across the aisle for that purpose. And I thank the gentleman for yielding Mr. CULBERSON. I reserve the balance of my time.

Mr. FATTAH. Will the gentleman yield? Mr. POE of Texas. I yield to the gentleman from Pennsylvania.

Mr. FATTAH. I just wanted to indicate that on behalf of the minority, we support your amendment and are prepared to agree to it. Mr. POE of Texas. I yield 1 minute to the gentleman from Kentucky (Mr. MASSIE).

Mr. MASSIE. Thank you, Judge POE, for introducing this amendment. This was substantially the same amendment that we offered last summer that passed with a veto-proof majority 293– 123. Back doors are bad for three reasons. When the government forces companies to put back doors or weaken their encryption, it is bad for security because hackers are going to find these back doors and other foreign countries will find these back doors. It is bad for privacy because the Fourth Amendment can be violated. And it is bad for business. As my colleague ZOE LOFGREN from California mentioned, it is bad for business because it makes us less competitive overseas. Who wants to buy a piece of defective software that was made defective by our government? So I urge Members to vote for this amendment because it would prevent all of these bad things from occurring.

Mr. POE of Texas. Mr. Chairman, how much time do I have remaining?

The Acting CHAIR. The gentleman from Texas has 2 minutes remaining.

Mr. POE of Texas. In conclusion, I want to thank the minority, Ms. LOFGREN, and all the cosponsors on this, as well as the chairman of the subcommittee, for their support. On the issue of privacy, in this time where we have threats to this country, we can have security and we can certainly have privacy, and we can have the Constitution be followed as well. The Fourth Amendment has always required that if the government wants to search, the government must follow certain rules. And those rules are that you must get a warrant from a judge based on probable cause. That is still the law of the land, even in 2015. All this amendment does is ensure the fact that the government—the FBI—follows the Constitution. The idea that the Federal Government wants to have encryption in American cell phones so they can have access to the information is repulsive. So all this does is keep the Federal Government out of our business without appropriate constitutional protections. I ask for support of this amendment, and I yield back the balance of my time.

Mr. CULBERSON. Mr. Chairman, I just want to reaffirm that, as Judge POE has written this amendment, there is an exception in here that if the government gets a court order, they can go in and put a back door on the phone when the judge says there is a compelling reason to do so. I yield to the gentleman. Mr. POE of Texas. Certainly. The law—the Constitution—still applies that the government must go and get a warrant based upon probable cause under the Fourth Amendment. Of course, there are exceptions to warrantless search.

Mr. CULBERSON. Reclaiming my time, the way the amendment is written, the government can’t just force all phone companies to build a back door into all telephones. You have got to have a court order on that specific phone, on that specific person, before you can do it. That is absolutely reasonable. That is what Mr. Madison and Mr. Jefferson intended for us to do.

Therefore, I support the gentleman’s amendment, and I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Texas (Mr. POE). The amendment was agreed to.

AMENDMENT OFFERED BY MR. POLIS

Mr. POLIS. 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: SEC. ll. None of the funds made available by this Act may be used to execute a subpoena of tangible things pursuant to section 506 of the Controlled Substances Act (21 U.S.C. 876) that does not include the following sentence: ‘‘This subpoena limits the collection of any tangible things (including phone numbers dialed, telephone numbers of incoming calls, and the duration of calls) to those tangible things identified by a term that specifically identifies an individual, account, address, or personal device, and that limits, to the greatest extent reasonably practicable, the scope of the tangible things sought.’’.

The Acting CHAIR. Pursuant to House Resolution 287, the gentleman from Colorado and a Member opposed each will control 5 minutes. The Chair recognizes the gentleman from Colorado. Mr. POLIS.

Mr. Chairman, here in Congress we have just been spending a lot of time and energy discussing NSA surveillance. The American public— and now, Members of Congress in both Chambers—have spoken clearly that the kind of bulk data collection the NSA has engaged in needs to be stopped. However, there is a corresponding change that we need to make with regard to the Drug Enforcement Administration. In a series of revelations from 2013 to 2015, it came to light that the DEA had for more than 20 years been gathering a vast database of information on America’s personal communications. There was no congressional authority for this program and no oversight by Congress or any area of the Federal Government. Legal experts who weighed in after the program was finally made public have said without hesitation that the program was illegal. In 2013, the Department of Justice brought this program to an end, but there is nothing to stop the government or the DOJ from resuming it at will unless Congress acts by inserting this language in the appropriations bill. Without this language, the DEA could once again unilaterally sweep up the communications records of millions of Americans. There is no reason that, as we work to end the unconstitutional surveillance that the NSA has engaged in, we should continue to allow the DOJ to have the very same abuses. This is a corresponding piece of legislation to something that already passed the House with regard to the NSA by an overwhelming majority. I urge my colleagues to support our bipartisan amendment that we worked on with Mr. GRIFFITH, Mr. SCHWEIKERT, Mr. NADLER, and Mr. FARENTHOLD to simply prohibit DOJ from using Federal funds to engage in bulk data collection of Americans’ phone records or other data, and I reserve the balance of my time.

Mr. CULBERSON. Mr. Chairman, I claim time in opposition.

The Acting CHAIR. The gentleman from Texas is recognized for 5 minutes.

Mr. CULBERSON. Just being given Mr. POLIS’ amendment, I oppose the idea of bulk data collection. I would like to accept the gentleman’s amendment because of my previous expressed concerns about how we want to make sure we are protecting the privacy of law-abiding Americans. So I would accept the gentleman’s amendment with the understanding that I would work with him. There may be unintended consequences here that I am not immediately aware of. Judiciary Committee staff is working with ours right now to make sure we have got our arms around this. I want to make sure that if the DEA has a valid court order, a valid subpoena, that they can go after lawbreakers and complete their investigations. Again, we want to protect the privacy of law-abiding Americans.

Mr. FATTAH. Will the gentleman yield?

Mr. CULBERSON. I yield to the gentleman from Pennsylvania.

Mr. FATTAH. I think with the understanding that the chairman has laid out, your accepting this amendment would move us forward, and I agree. I think we have a clear understanding that you are accepting it, but we will work together to make sure it doesn’t have any unintended consequences.

Mr. CULBERSON. Reclaiming my time, with that understanding, I want to make sure we reserve the right of DEA to get a court order to do their work. With that understanding, I withdraw my opposition and will accept the amendment. I yield back the balance of my time.

Mr. POLIS. I yield 1 minute to the gentleman from New York (Mr. NADLER), the coauthor of the amendment.

Mr. NADLER. I thank the gentleman for yielding. I rise in strong support of this amendment to prevent bulk collection of data at the Department of Justice. Last month, this House spoke loud and clear that we oppose the National Security Agency’s bulk collection of telephone metadata. Today, the Senate joined us in that judgment, and, together, we have reaffirmed our commitment to the Fourth Amendment and to protecting Americans from unconstitutional government surveillance. We learned earlier this year that long before the NSA program ban, the Drug Enforcement Administration engaged in its own bulk collection program that provided a model for the NSA to use nearly a decade later. This program included logs of virtually all telephone calls from the U.S. to as many as 116 countries, ostensibly linked to drug trafficking, all without a court order and without authorization from Congress. Mr. Chairman, enough is enough. Although the DOJ has since shut down this program, there is nothing preventing the Department from renewing it in secret without authorization, as it did before. This amendment would ensure that it remains dormant and that Americans’ privacy remains secure. I thank Mr. POLIS and the other cosponsors of the amendment, and I thank the gentleman from Texas for accepting this amendment. I urge my colleagues to support this amendment.

Mr. POLIS. Mr. Chairman, I yield 1 minute to the gentleman from Texas (Mr. FARENTHOLD).

Mr. FARENTHOLD. Mr. Chairman, I rise in support of this amendment and thank my colleague from Texas for agreeing to accept it. This has been a great victory this week in our ability to work with the Senate to rein in what I believe to be the unconstitutional bulk data collection by the NSA. Just because we stopped the NSA doesn’t mean we shouldn’t be ever vigilant. With the reports of the DEA engaging in similar activities, it is absolutely appropriate that we use the power of the purse to ensure that this type of spying on American citizens— this bulk data collection—is stopped. This is no different from the general warrants that were complained about when the King of England would send troops to rifle through people’s desks just looking for stuff. It is the exact same thing in the digital age. I encourage my colleagues to support it and look forward to working with my colleague, Mr. CULBERSON, in making sure it does become part of this bill.

Mr. POLIS. In conclusion, I want to thank the gentleman from Texas (Mr. CULBERSON). It is, indeed, the intended language and we believe the actual language of the amendment that would not interfere with any valid court orders or warrants. We are happy to work with them in that regard. The amendment is designed to pertain to bulk collection of data, which was never specifically authorized by Congress. I appreciate the gentleman from Texas accepting the amendment, and I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Colorado (Mr. POLIS).

The amendment was agreed to. 

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