Devin Nunes

Mr. NUNES

Mr. NUNES. Mr. Speaker, I rise to oppose the motion.

Mr. NUNES. Mr. Speaker, this motion to recommit is nothing more than a poison pill designed to destroy the hard work that has gone into crafting this legislation. This bill already does exactly what the motion to recommit proposes. It helps the Federal Government, including the patriotic men and women of our intelligence community, address the critical national security issues facing this country. As anyone who worked on it in the committee or took the time to come down and read the annex knows, this bill already funds intelligence community personnel who protect our networks. While we stand here, the intelligence community is wrestling with some of the greatest national security threats in our country's history. I urge my colleagues to vote ``no'' on the motion to recommit and ``yes'' on final passage. I yield back the balance of my time.

Mr. NUNES

Mr. NUNES. Madam Speaker, I ask unanimous consent that the Clerk be authorized to make technical corrections in the engrossment of H.R. 2596, to correct section numbers, punctuation, and cross-references, and to make such other technical and conforming changes as may be necessary to accurately reflect the actions of the House, including changing ``line 17'' to ``line 11'' in the instruction in amendment No. 3 by the gentleman from New York (Mr. Crowley).

Mr. NUNES

Mr. NUNES. Mr. Speaker, this is a time when everybody in this body needs to step back and really realize what we are here to do today. This is an historic moment. We will either move forward with our allies, with our partners--with our trading partners--or we will move back. TPA is just one step. It is a step that we must have in order to pass additional trade agreements that we have been doing throughout our history. If you look at where we are today, this is about trade promotion authority. People will have plenty of time to look at whatever trade agreements come down the pipeline over the next 5 years. That is what this debate is about. Why do we need trade agreements? We need to reduce tariffs on products that are made in the United States so that we have a better opportunity to export them overseas. Mr. Speaker, this agreement has geopolitical concerns also. If we look down the road at the first trade agreement that is supposed to come up, it is supposed to be the Trans-Pacific Partnership. Today, if you look at what our partners and allies in Asia are dealing with, it is a behemoth in China, and China doesn't want to play by the rules. They have consistently avoided playing by the rules, which is putting our allies and our trading partners at risk, which is why we need to come together and pass an agreement. If you pass the Trans-Pacific Partnership agreement and the EU agreement, you have two-thirds of the world's economy under one set of rules. That is what this is really about. If we pass trade promotion authority, we move to the Trans-Pacific Partnership, and we move to the European Union agreement. Then we get two-thirds of the world's economy under the same set of rules. I hope that my colleagues will step back and just stop all of the rhetoric on both sides of the aisle. On one side, we have people who are clearly representing the labor unions. On the other side, we have people who don't want to give the President a victory. Today, Mr. Speaker, is a time when we need to step back and do the right thing for the right reasons for the American people.

Mr. NUNES

Mr. NUNES. Mr. Speaker, I wish to announce to all Members of the House that the Permanent Select Committee on Intelligence has ordered the bill H.R. 2596, the Intelligence Authorization Act for Fiscal Year 2016, reported favorably to the House today with an amendment, and will file its report on the bill in the House early next week. The bill is currently expected to be considered in the House later in the week. Mr. Speaker, the classified schedules of authorizations and the classified annexes accompanying the bill are available for review by all Members at the offices of the Permanent Select Committee on Intelligence in room HVC-304 of the Capitol Visitor Center. The committee office will be open during regular business hours for the convenience of any Member who wishes to review this material prior to its consideration by the House. I recommend that Members wishing to review the classified annex contact the committee's director of security to arrange a time and date for that viewing. This will assure the availability of appropriately cleared committee staff to assist Members who desire assistance during their review of these classified materials. I urge interested Members to review these materials in order to better understand the committee's recommendations. The classified annexes to the committee's report contain the committee's recommendations on the intelligence budget for fiscal year 2016 and related classified information that cannot be disclosed publicly. It is important that Members keep in mind the requirements of clause 13 of House rule XXIII, which only permits access to classified information by those Members of the House who have signed the oath provided for in the rules. In addition, the committee's rules require that Members agree in writing to a nondisclosure agreement. The agreement indicates that the Member has been granted access to the classified annexes and that they are familiar with the rules of the House and the committee with respect to the classified nature of that information and the limitations on the disclosure of that information.

Mr. NUNES

Mr. NUNES. Mr. Speaker, I rise in support of H.R. 2048, the USA FREEDOM Act of 2015. Ideally, we would reauthorize section 215 of the U.S. PATRIOT Act and other expiring FISA authorities without making any changes. These provisions authorize important counterterrorism programs, including the NSA bulk telephone metadata program. What is more, they are constitutional, authorized by Congress, and subject to multiple layers of oversight from all three branches of government. As threats to Americans at home and abroad increase by the day, now is not the time to be weakening our national security with all the tragic consequences that may follow. However, I also realize that some of my colleagues disagree. Despite the fact that the NSA bulk telephone metadata program has never been intentionally misused, many Members wish to make changes to increase confidence in the program and allow greater transparency into intelligence activities. Like the bill the House passed last year with more than 300 votes, this bill would replace the bulk program that will expire on June 1 with a targeted authority. This new targeted authority will be slower and potentially less effective than the current program. Along with Ranking Member Schiff, I have worked with the Judiciary Committee to ensure these changes still allow as much operational flexibility as possible. Chairman Goodlatte, Ranking Member Conyers, and Subcommittee Chairman Sensenbrenner, thank you for the constructive work between our committees. In addition, the USA FREEDOM Act of 2015 contains several significant measures to improve national security that were not part of last year's bill. It closes a loophole in current law that requires the government to stop monitoring the communications of foreign terrorists, including ISIL fighters from Syria and Iraq, when they enter the United States. It streamlines the process for the government to track foreign spies who temporarily leave the United States. It helps the government investigate proliferators of weapons of mass destruction. It increases the maximum sentence for material support to a foreign terrorist organization. Those changes are real improvements that will make it easier for our intelligence and law enforcement agencies to keep Americans safe. Again, I would prefer a clean reauthorization, but the bill we consider today is the best way forward in the House to ensure Congress takes responsible action to protect national security. I urge my colleagues to support it. Administrative Office of the United States Courts, Washington, DC, May 4, 2015. Hon. Devin Nunes, Chairman, Permanent Select Committee on Intelligence, House of Representatives, Washington, DC. Dear Mr. Chairman: I write regarding H.R. 2048, the ``USA Freedom Act,'' which was recently ordered reported by the Judiciary Committee, to provide perspectives on the legislation, particularly an assessment that the pending version of the bill could impede the effective operation of the Foreign Intelligence Surveillance Courts. In letters to the Committee on January 13, 2014 and May 13, 2014, we commented on various proposed changes to the Foreign Intelligence Surveillance Act (FISA). Our comments focused on the operational impact of certain proposed changes on the Judicial Branch, particularly the Foreign Intelligence Surveillance Court (``FISC'') and the Foreign Intelligence Surveillance Court of Review (collectively ``FISA Courts''), but did not express views on core policy choices that the political branches are considering regarding intelligence collection. In keeping with that approach, we offer views on aspects of H.R. 2048 that bear directly on the work of the FISA Courts and how that work is presented to the public. We sincerely appreciate the ongoing efforts of the bipartisan leadership of all the congressional committees of jurisdiction to listen to and attempt to accommodate our perspectives and concerns. We respectfully request that, if possible, this letter be included with your Committee's report to the House on the bill. Summary of Concerns We have three main concerns. First, H.R. 2048 proposes a ``panel of experts'' for the FISA Courts which could, in our assessment, impair the courts' ability to protect civil liberties by impeding their receipt of complete and accurate information from the government (in contrast to the helpful amicus curiae approach contained in the FISA Improvements Act of 2013 (``FIA''), which was approved in similar form by the House in 2014). Second, we continue to have concerns with the prospect of public ``summaries'' of FISA Courts' opinions when the opinions themselves are not released to the public. Third, we have a few other specific technical concerns with H.R. 2048 as drafted. Nature of the FISA Courts With the advent of a new Congress and newly proposed legislation, it seems helpful to restate briefly some key attributes of the work of the FISA Courts. The vast majority of the work of the FISC involves individual applications in which experienced judges apply well-established law to a set of facts presented by the government--a process not dissimilar to the ex parte consideration of ordinary criminal search warrant applications. Review of entire programs of collection and applications involving bulk collection are a relatively small part of the docket, and applications involving novel legal questions, though obviously important, are rare. In all matters, the FISA Courts currently depend on--and will always depend on--prompt and complete candor fom the government in providing the courts with all relevant information because the government is typically the only source of such information. A ``read copy'' practice--similar to the practices employed in some federal district courts for Title III wiretap applications--wherein the government provides the FISC with an advance draft of each planned application, is the major avenue for court modification of government-sought surveillance. About a quarter of ``read copies'' are modified or withdrawn at the instigation of the FISC before the government presents a final application--in contrast to the overwhelming majority of formal applications that are approved by the Court because modifications at the ``read copy'' stage have addressed the Court's concerns in cases where final applications are submitted. The FISC typically operates in an environment where, for natonal security reasons and because of statutory requirements, time is of the essence, and collateral litigation, including for discovery, would generally be completely impractical. At times, the FISA Courts are presented with challenging issues regarding how existing law applies to novel technologies. In these instances, the FISA Courts could benefit from a conveniently available explanation or evaluation of the technology from an informed non-government source. Congress could assist in this regard by clarifying the law to provide mechanisms for this to occur easily (e.g., by providing for pre-cleared experts with whom the Court can share and receive information to the extent it deems necessary). the ``panel of experts'' approach of h.r. 2048 could impede the fisa courts' work H.R. 2048 provides for what proponents have referred to as a ``panel of experts'' and what in the bill is referred to as a group of at least five individuals who may serve as an ``amicus curiae'' in a particular matter. However, unlike a true amicus curiae, the FISA Courts would be required to appoint such an individual to participate in any case involving a ``novel or significant interpretation of law'' (emphasis added)--unless the court ``issues a finding'' that appointment is not appropriae. Once appointed, such amici are required to present to the court, ``as appropriate,'' legal arguments in favor of privacy, information about technology, or other ``relevant'' information. Designated amici are required to have access to ``all relevant'' legal precedent, as well as certain other materials ``the court determines are relevant.'' Our assessment is that this ``panel of experts'' approach could impede the FISA Courts' role in protecting the civil liberties of Americans. We recognize this may not be the intent of the drafters, but nonetheless it is our concern. As we have indicated, the full cooperation of rank-and-file government personnel in promptly conveying to the FISA Courts complete and candid factual information is critical. A perception on their part that the FISA process involves a ``panel of experts'' officially charged with opposing the government's efforts could risk deterring the necessary and critical cooperation and candor. Specifically, our concern is that imposing the mandatory ``duties''-- contained in subparagraph (i)(4) of proposed section 401 (in combination with a quasi-mandatory appointment process)--could create such a perception within the government that a standing body exists to oppose intelligence activities. Simply put, delays and difficulties in receiving full and accurate information from Executive Branch agencies (including, but not limited to, cases involving non- compliance) present greater challenges to the FISA Courts' role in protecting civil liberties than does the lack of a non-governmental perspective on novel legal issues or technological developments. To be sure, we would welcome a means of facilitating the FISA Courts' obtaining assistance from nongovernmental experts in unusual cases, but it is critically important that the means chosen to achieve that end do not impair the timely receipt of complete and accurate information from the government. It is on this point especially that we believe the ``panel of experts'' system in H.R. 2048 may prove counterproductive. The information that the FISA Courts need to examine probable cause, evaluate minimization and targeting procedures, and determine and enforce compliance with court authorizations and orders is exclusively in the hands of the government-- specifically, in the first instance, intelligence agency personnel. If disclosure of sensitive or adverse information to the FISA Courts came to be seen as a prelude to disclosure to a third party whose mission is to oppose or curtail the agency's work, then the prompt receipt of complete and accurate information from the government would likely be impaired--ultimately to the detriment of the national security interest in expeditious action and the effective protection of privacy and civil liberties. In contrast, a ``true'' amicus curiae approach, as adopted, for example, in the FIA, facilitates appointment of experts outside the government to serve as amici curiae and render any form of assistance needed by the court, without any implication that such experts are expected to oppose the intelligence activities proposed by the government. For that reason, we do not believe the FIA approach poses any similar risk to the courts' obtaining relevant information. ``summaries'' of unreleased fisa court opinions could mislead the public In our May 13, 2014, letter to the Committee on H.R. 3361, we shared the nature of our concerns regarding the creation of public ``summaries'' of court opinions that are not themselves released. The provisions in H.R. 2048 are similar and so are our concerns. To be clear, the FISA Courts have never objected to their opinions--whether in full or in redacted form--being released to the public to the maximum extent permitted by the Executive's assessment of national security concerns. Likewise, the FISA Courts have always facilitated the provision of their full opinions to Congress. See, e.g., FISC Rule of Procedure 62(c). Thus, we have no objection to the provisions in H.R. 2048 that call for maximum public release of court opinions. However, a formal practice of creating summaries of court opinions without the underlying opinion being available is unprecedented in American legal administration. Summaries of court opinions can be inadvertently incorrect or misleading, and may omit key considerations that can prove critical for those seeking to understand the import of the court's full opinion. This is particularly likely to be a problem in the fact-focused area of FISA practice, under circumstances where the government has already decided that it cannot release the underlying opinion even in redacted form, presumably because the opinion's legal analysis is inextricably intertwined with classified facts. additional technical comments on h.r. 2048 The Judiciary, like the public, did not participate in the discussions between the Administration and congressional leaders that led to H.R. 2048 (publicly released on April 28, 2015 and reported by the Judiciary Committe without changes on April 30). In the few days we have had to review the bill, we have noted a few technical concerns that we hope can be addressed prior to finalization of the legislation, should Congress choose to enact it. These concerns (all in the amicus curiae subsection) include: Proposed subparagraph (9) appears inadvertently to omit the ability of the FISA Courts to train and administer amici between the time they are designated and the time they are appointed. Proposed subparagraph (6) dots not make any provision for a ``true amicus'' appointed under subparagraph (2)(B) to receive necessary information. We are concerned that a lack of parallel construction in proposed clause (6)(A)(i) (apparently differentiating between access to legal precedent as opposed to access to other materials) could lead to confusion in its application. We recommend adding additional language to clarify that the exercise of the duties under proposed subparagraph (4) would occur in the context of Court rules (for example, deadlines and service requirements). We believe that slightly greater clarity could be provided regarding the nature of the obligations referred to in proposed subparagraph (10). These concerns would generally be avoided or addressed by substituting the FIA approach. Furthermore, it bears emphasis that, even if H.R. 2048 were amended to address all of these technical points, our more fundamental concerns about the ``panel of experts'' approach would not be fully assuaged. Nonetheless, our staff stands ready to work with your staff to provide suggested textual changes to address each of these concerns. Finally, although we have no particular objection to the requirement in this legislation of a report by the Director of the AO, Congress should be aware that the AO's role would be to receive information from the FISA Courts and then simply transmit the report as directed by law. For the sake of brevity, we are not restating here all the comments in our previous correspondence to Congress on proposed legislation similar to H.R. 2048. However, the issues raised in those letters continue to be of importance to us. We hope these comments are helpful to the House of Representatives in its consideration of this legislation. If we may be of further assistance in this or any other matter, please contact me or our Office of Legislative Affairs. Sincerely, James C. Duff, Director.

Mr. NUNES

Mr. NUNES. Madam Chair, I submit the following exchange of letters regarding H.R. 1560: House of Representatives, Committee on the Judiciary, Washington, DC, April 7, 2015. Hon. Devin Nunes, Chairman, House Permanent Select Committee on Intelligence, Washington, DC. Dear Mr. Chairman Nunes: I am writing concerning H.R. 1560, the ``Protecting Cyber Networks Act,'' which your Committee ordered reported on March 26, 2015. As you know, H.R. 1560 contains provisions within the Committee on the Judiciary's Rule X jurisdiction. As a result of your having consulted with the Committee and in order to expedite the House's consideration of H.R. 1560, the Committee on the Judiciary will not assert a jurisdictional claim over this bill by seeking a sequential referral. However, this is conditional on our mutual understanding and agreement that doing so will in no way diminish or alter the jurisdiction of the Committee on the Judiciary with respect to the appointment of conferees or to any future jurisdictional claim over the subject matters contained in the bill or similar legislation. I would appreciate your response to this letter confirming this understanding, and would request that you include a copy of this letter and your response in the Committee Report and in the Congressional Record during the floor consideration of this bill. Thank you in advance for your cooperation. Sincerely, Bob Goodlatte, Chairman.

Mr. NUNES

Mr. NUNES. Mr. Chair, I yield myself such time as I may consume. Over the last several years, cyber attacks have become a pressing concern for the United States. Anthem, Home Depot, Sony, Target, JPMorgan Chase, and other companies have been subject to major attacks, resulting in the compromise of personal information of employees and customers alike. Cyber thieves, whether hostile foreign agents or money-seeking criminals, have stolen credit card numbers, accessed medical records, leaked proprietary information, and published confidential emails affecting tens of millions of Americans. This situation cannot continue. The House has passed cybersecurity information-sharing legislation with strong majorities in the past two Congresses. The gentleman from California, Ranking Member Schiff, and I have continued this bipartisan tradition, working closely together to draft a bill that will increase the security of our networks while protecting users' privacy. I see the gentleman from Maryland (Mr. Ruppersberger) is here. He sponsored this legislation last time, along with the gentleman from Michigan, Chairman Rogers, who is now retired, but I do want to give them a special thanks and gratitude. I hope that we can get this bill across the floor this year. We have also worked closely with leadership--the gentleman from Texas, Chairman McCaul; the gentleman from Virginia, Chairman Goodlatte--and the Senate Intelligence Committee to ensure that our bills complement each other. The Protecting Cyber Networks Act addresses a core problem in our digital security infrastructure. Because of legal ambiguities, many companies are afraid to share information about cyber threats with each other or with the government. If a company sees some threat or attack, this bill will allow the company to quickly report information about the problem without fearing a lawsuit so that other companies can take measures to protect themselves. The bill encourages three kinds of sharing: private-to-private, government-to-private, and private-to-government. In that third scenario, the bill allows companies to share cyber threat information with a variety of government agencies. If banks are comfortable sharing with the Treasury Department, they can share with Treasury. If utilities prefer sharing with the Department of Energy, they can share with Energy. If companies want to share with the Department of Homeland Security, the Justice Department, or the Commerce Department, they can share with them. The only sharing that this bill does not encourage is direct sharing to the Department of Defense or the National Security Agency. Companies can still share with DOD and NSA, but they will not receive any new liability protections. This bill does not provide the government with any new surveillance authorities. To the contrary, it includes robust privacy protections. It only authorizes the sharing of cyber threat indicators and defensive measures: technical information like malware signatures and malicious code. Before companies share with the Federal Government, they must remove all personal information. If companies don't follow those requirements, there is no liability protection. Furthermore, a government agency that receives the information must scrub it a second time. This will ensure all personal information has been removed. Only then can the information be forwarded to other Federal agencies. Finally, the bill provides for strong public and congressional oversight by requiring a detailed biennial inspectors general report relating to the government's receipt, use, and dissemination of cyber threat indicators. The Privacy and Civil Liberties Oversight Board must also submit a biennial report on the privacy and civil liberties impact of the bill. The increasing pace and scope of cyber attacks cannot be ignored. This bill will strengthen our digital defenses so that American consumers and businesses will not be put at the mercy of cyber criminals. I look forward to passing this legislation. I reserve the balance of my time.

Mr. NUNES. Madam Chair, at this time I would like to yield 3 minutes to the gentleman from Georgia (Mr. Westmoreland), who also is the chairman of the Subcommittee on NSA and Cybersecurity for the House Intelligence Committee.

Mr. NUNES. Madam Chair, at this time, I yield 2 minutes to the gentleman from Michigan (Mr. Trott).

Mr. NUNES. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and insert extraneous material on H.R. 1560, the Protecting Cyber Networks Act.

Mr. NUNES. Will the gentleman yield?

Mr. NUNES. I thank the gentleman for yielding. I thanked you in my opening statement, Mr. Ruppersberger, but without your leadership and former Chairman Rogers' leadership on this bill, we would not be here today. I am encouraged not only by your past support, but then your taking the time to come down here to speak on this bill I think says a lot about you and your commitment to our national security and the security of our cyber networks. So thank you.

Mr. NUNES. Madam Chair, at this time I yield 5 minutes to the gentleman from Texas (Mr. McCaul), the chairman of the Homeland Security Committee, who, without his strong leadership and support, we wouldn't be at this juncture today getting a bill passed today and tomorrow that will hopefully become law.

Mr. NUNES. Madam Chair, I continue to reserve the balance of my time.

Mr. NUNES. Madam Chair, I continue to reserve the balance of my time.

Mr. NUNES. Madam Chair, I reserve the balance of my time.

Mr. NUNES. Madam Chair, I yield myself such time as I may consume. I will close by just taking a few moments to thank my ranking member and colleague from California (Mr. Schiff) for his fine work on this product. I also would be remiss not to thank, on both sides of the aisle, the staff that have worked hours and hours and hours to make the legislation from last Congress even better and then, as Mr. McCaul said, to work with the Judiciary Committee and the Homeland Security Committee so that we have a product that I think is much better than the product that we have had in the past. We have been in consultations with the United States Senate. They have passed their bill out of committee. We look forward to, hopefully, their passing a bill off the Senate floor so that we can get to a conference. Madam Chair, I yield back the balance of my time.

Mr. NUNES. Madam Chair, I have an amendment at the desk.

Mr. NUNES. Madam Chair, I offer this amendment to make certain technical changes to the bill. These changes will align several sections of the bill, including the authorization for the use of defensive measures and the liability protections, with the Committee on Homeland Security's bill, H.R. 1731. The amendment also removes a direct amendment to the Freedom of Information Act because the bill already contains a strong exemption of cyber threat information and defensive measures from disclosure. The change does not have a substantive effect on the exemption of cyber threat information from disclosure laws. The changes also reflect feedback we have received from our minority, from the executive branch, from outside groups, and from other committees of Congress. We want to make sure that the bill establishes a workable system for companies and the government to share cyber threat information and defensive measures. I urge Members to support this technical and clarifying amendment, and I reserve the balance of my time.

Mr. NUNES. Madam Chair, as I have no other speakers, I urge my colleagues to support this amendment. I yield back the balance of my time.

Mr. NUNES. Madam Chair, I claim the time in opposition, although I am not opposed to the amendment.

Mr. NUNES. Madam Chair, I want to thank the gentleman from California for bringing forward this thoughtful amendment. He worked closely with the committee to ensure that the language did not disrupt the intent of the bill. I am prepared to accept the amendment. I yield back the balance of my time.

Mr. NUNES. Madam Chair, I claim the time in opposition, although I am not opposed to the amendment.

Mr. NUNES. Madam Chair, I want to thank the gentleman. He is a member of the Intelligence Committee and has played a very productive and constructive role. As he said, his constituents have brought these concerns to him. He worked with the ranking member and me, and we are prepared to accept the amendment. I yield back the balance of my time.