Six months after it was written to restrain the National Security Agency’s sweeping domestic surveillance, a privacy bill cleared a major legislative obstacle on Wednesday, even as its advocates worried that the compromises made to advance the bill have weakened its constraints on mass data collection.



The USA Freedom Act, designed to prevent the US government from collecting US phone data in bulk, passed the House Judiciary Committee by a 32 to zero bi-partisan vote, making it the first surveillance reform bill to proceed out of committee and to the House floor.



But an internal committee breakthrough on Monday that won the support of chairman Bob Goodlatte, a Virginia Republican, significantly recast the bill, softening its prohibitions on aspects of bulk collection and requiring transparency around it.

The bill’s architect, Republican James Sensenbrenner of Wisconsin, who also wrote the 2001 Patriot Act, said the bill “makes it crystal clear that Congress does not support bulk collection.”

While changes to the bill now permit the government to gather call records up to two degrees of separation away from a specific target – potentially millions of records – Sensenbrenner urged his colleagues “not to make the perfect the enemy of the good,” expressing confidence that the revamped USA Freedom Act was on “the fast track to passage.”

Supporters in and outside of Congress concede the latest compromises have left the USA Freedom Act less protective of civil liberties than it was when introduced in October. Its distinctions from a rival bill written by the leaders of the House intelligence committee, the NSA’s strongest Capitol Hill advocates, are somewhat blurred, prompting civil libertarians to become less enthusiastic of a measure they have championed as a fix to the broad NSA powers exposed by whistleblower Edward Snowden.

Representative John Conyers, a Michigan Democrat and longtime USA Freedom Act supporter, said that the new version of the bill was a “less than perfect compromise” that still makes “important, vital, substantive changes” to US surveillance.

The revised USA Freedom Act, “while still better than any other proposal on the board, is a setback from the original,” said Amie Stepanovich of Access, a human rights and digital rights advocacy group.

While the USA Freedom Act has nearly 150 House co-sponsors, and a stalled Senate companion commands 20 votes in the upper chamber, it was clear on Wednesday that the House intelligence committee will continue attempts to outmaneuvre its rival.

The chairman of the intelligence committee, until now a fervent critic of the USA Freedom Act, is now praising a bill he has long criticized, and which several congressional sources said he attempted to influence ahead of Wednesday’s vote.



Representative Mike Rogers, a Michigan Republican who is retiring this year, called the changes to the USA Freedom Act a “huge improvement,” adding in an interview with Foreign Policy magazine that the bill’s architects have “come a lot closer [and] now we're just trying to work out the wording.”



Rogers is scheduled to mark up his alternative bill, the Fisa Transparency and Modernization Act, on Thursday, a decision USA Freedom Act supporters view as a desperation move. But on Wednesday, Rogers’ committee announced it will also mark up the USA Freedom Act on Thursday, prompting Capitol Hill speculation that Rogers will attempt to merge his bill with the Freedom Act rather than attempt to rally more votes.



House Speaker John Boehner of Ohio had earlier thrown his support behind Rogers’ bill. But now Boehner is said to be monitoring the committe process and keeping his options open. Congressional sources expected Boehner to schedule a vote on a surveillance proposal – of whatever form – as early as the week of 19 May, so the issue does not derail the annual defense budget authorization, though nothing is scheduled yet.



Both bills as originally crafted prevent the NSA from collecting US phone data in bulk, as it has done in secret since 2001, a position that President Barack Obama now embraces. The major difference between the two bills remains the role of judges in authorizing data collection. The Rogers bill permits the government to collect phone and email data absent a judges’ prior order, which the revised USA Freedom Act requires in all but emergency cases.



Additionally, the revised USA Freedom Act permits the government to get phone data two “hops,” or degrees of separation, from the target of the order, which can mean millions of call records reaped from a single court order. The legal standard for that order, for counterterrorism purposes, will be “reasonable articulable suspicion” of connection to an agent of a foreign power, the NSA’s desired framework.



Significantly, the new version of the USA Freedom Act all but stripped out a provision preventing the NSA from combing through its foreign communications dragnets for Americans’ information, something Senator Ron Wyden of Oregon dubbed the “backdoor search provision,” an absence that has deeply upset supporters. Those dragnets exist pursuant to a major 2008 piece of legislation, known as Section 702 of the Fisa Amendments Act.



Congressional sources pointed to new language tightening up prohibitions on the NSA intentionally targeting Americans’ communications at the outset as a palliative. But they conceded the absence of the backdoor search ban was a major change – one they said the NSA’s advocates fought hard for, an indication of how central the NSA considers a power it has rarely forthrightly acknowledged using. They indicated that USA Freedom Act supporters lacked the votes within the committee to pass the bill that retained the backdoor search prohibition.



An attempt by Representative Zoe Lofgren, a California Democrat, to restore the backdoor search provision failed Wednesday. Goodlatte said restoring it would “disrupt this bipartisan agreement.”



Kevin Bankston of the Open Technology Institute said he was “incredibly disappointed” at the new USA Freedom Act’s effective blessing of backdoor searches.



“Especially when we’re expecting the government’s own surveillance watchdog, the Privacy and Civil Liberties Oversight Board, to issue a report on just that issue within a month or so, closing the door to reform on Section 702 of the Fisa Amendments Act would be premature,” Bankston said in a statement.



But the Judiciary Committee restored a provision initially struck from the original USA Freedom Act permitting increased transparency for companies receiving surveillance orders for their customers’ data, the absence of which had alarmed supporters.



The language, added back to the bill Wednesday by Representative Suzan Delbene of Washington, had been cut in order to codify a January deal the Justice Department reached with phone and Internet companies allowing them to list received orders only in bands of 1,000 and with a time lag. Congressional sources said companies lobbied hard to restore transparency language.



The Obama administration has withheld endorsement of either bill in public, confusing supporters. But in recent weeks, its guidance to Capitol Hill on surveillance reform included a requirement for up-front judicial authorization for data requests, which only the USA Freedom Act possesses.



“At this stage, I think I'd just say we will be watching closely as these bills go through the process,” said Caitlin Hayden, a White House spokeswoman said shortly before the vote.



Hours after the vote, Hayden issued a statement welcoming the USA Freedom Act as "a very good first step":

"In March the president laid out his proposal to reform Section 215, and called upon Congress to act quickly to pass implementing legislation. We applaud the House Judiciary Committee for approaching this issue on a bipartisan basis. The Judiciary Committee passed bill is a very good first step in that important effort, and we look forward to House Permanent Select Committee on Intelligence action on it tomorrow," Hayden said.



Section 215 of the Patriot Act is the provision cited by the NSA and blessed by the secret Fisa Court for bulk data collection.



Some legislators, distressed by the changes to the USA Freedom Act, are considering a different option for surveillance reform.



As amended, the USA Freedom Act would push back the expiration of Section 215 to the end of 2017, when Section 702 is set to expire. The current expiration is 1 June of next year. Some legislators are already whispering that allowing Section 215 to expire wholesale in 2015 is a preferable reform.



But Representative Jerrold Nadler of New York, a Democrat, said the USA Freedom Act was “the first, best and perhaps only chance in a decade” to constrain widespread surveillance.



“This is our chance. We have to seize it,” Nadler said on Wednesday.



Patrick Leahy, the Vermont Democrat who sponsored the USA Freedom Act in the Senate, hailed the committee vote, but said he was concerned that the text does not reform the Federal Bureau of Investigation’s national-security letters and makes insufficient changes on transparency and to the Fisa Court.



“I will continue to push for those reforms when the Senate Judiciary Committee considers the USA Freedom Act this summer,” Leahy said in a statement.

