[Congressional Record Volume 159, Number 85 (Friday, June 14, 2013)]
[Extensions of Remarks]
[Pages E873-E875]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2014

                                 ______
                                 

                               speech of

                           HON. ALAN GRAYSON

                               of florida

                    in the house of representatives

                        Wednesday, June 5, 2013

       The House in Committee of the Whole House on the state of 
     the Union had under consideration the bill (H.R. 2217) making 
     appropriations for the Department of Homeland Security for 
     the fiscal year ending September 30, 2014, and for other 
     purposes:

  Mr. GRAYSON. Mr. Chair, I rise to describe the intent of Congress 
with regard to H. AMDT. 124 to H.R. 2217, the ``Department of Homeland 
Security Appropriations Act, 2014''. My amendment reads as follows:
  ``None of the funds made available by this Act may be used in 
contravention of the First, Second, or Fourth Amendments to the 
Constitution of the United States.''
  The intent of Congress is to prohibit the U.S. Department of Homeland 
Security (DHS) from contravening First, Second, or Fourth Amendment 
constitutional rights. Congress intends to prohibit DHS from 
cooperating with any public or private entity, organization, or agency 
of any kind to violate those constitutional rights, including, but not 
limited to, those agencies that are within the DHS structure: U.S. 
Customs and Border Protection, U.S. Citizen and Immigration Services, 
U.S. Immigration and Customs Enforcement, U.S. Coast

[[Page E874]]

Guard, Federal Emergency Management Agency, U.S. Secret Service, 
Transportation Security Administration, Federal Protective Service; in 
addition, those agencies that are signatory partners of the National 
Response Plan: Department of Agriculture, Department of Commerce, 
Department of Defense, Department of Education, Department of Energy, 
Department of Health and Human Services, Department of Homeland 
Security, Department of Housing and Urban Development, Department of 
the Interior, Department of Justice, Department of Labor, Department of 
State, Department of Transportation, Department of the Treasury, 
Department of Veterans Affairs, Central Intelligence Agency, 
Environmental Protection Agency, Federal Bureau of Investigation, 
Federal Communications Commission, General Services Administration, 
National Aeronautic and Space Administration, National Transportation 
Safety Board, Nuclear Regulatory Commission, Office of Personnel 
Management, Small Business Administration, Social Security 
Administration, Tennessee Valley Authority, U.S. Agency for 
International Development, U.S. Postal Service, American Red Cross, 
Corporation for National and Community Service, and National Voluntary 
Organizations Active in Disaster. In addition, Congress intends to 
include the Federal Bureau of Investigation and the National Security 
Agency in this non-exclusive list of prohibited agencies.
  Congress intends there be a cognizable informational privacy 
interest, derived from, but not limited to, the Fourth and First 
Amendments and Due Process rights, held by individuals in data that 
records, observes, catalogs and/or monitors persons' lawful acts, 
transactions, associations, beliefs and/or communications.
  Congress intends that racial, religious, gender, language, and 
national origin profiling be deemed unconstitutional.
  Congress intends that the collection of multiple individual points of 
data about a person, as well as the aggregation and storage of such 
data, creates an intimate mosaic about a person's actions and 
psychology of such a significantly intrusive nature as to violate 
fundamental privacy interests. The intent of this legislation is to 
prevent the Department of Homeland Security from collecting, storing, 
procuring, or using any information generated by a citizen of the 
United States while located in the United States, including telephone 
records, internet records, and physical location information, without 
probable cause of a terrorism or other criminal offense related to 
action or conduct by that citizen, or without the consent of that 
citizen.
  The intent of Congress is to protect the interest in informational 
privacy. This interest is especially significant where information and 
data collected by the government relates to First Amendment protected 
activities. The contravention of these rights and interests creates an 
injury of constitutional and other dimensions and also threatens the 
underpinnings of a constitutional democracy.
  The intent of Congress with this legislation is to place an absolute 
prohibition on any DHS involvement of any type or to any degree with 
any surveillance of Americans without specificity or without probable 
cause, such as the National Security Agency's recently revealed 
surveillance program. This prohibition includes any communication, 
cooperation, funding, assistance, or other association with another 
organization, agency, company, or other entity of any kind that has any 
involvement of any kind with such programs. The intent of Congress is 
for any private company engaged in surveillance or data collection on 
Americans, or serving in a role supportive of such efforts in any 
manner or to any degree, to be ineligible for any contracts or other 
payment from DHS. For example, due to its role in the NSA spying on 
Americans, Booz Allen Hamilton is ineligible.
  Congress intends to prohibit the ``Threat Management Division'' of 
the DHS, or any other department, office, or any other entity within 
DHS, from including reports on ``Peaceful Activist Demonstrations,'' or 
reports on any other constitutionally-protected speech activities. 
Congress recognizes that monitoring and documenting constitutionally 
protected speech activity by law enforcement and intelligence agencies 
including DHS result in a chilling effect on speech and a violation of 
fundamental privacy interests, and should be prohibited under all 
circumstances. The intent of Congress with this bill is to reinforce 
the nation's proud history of petition and protest, and Congress 
intends to encourage this essential form of democratic participation, 
by eliminating any surveillance or documentation of such legal activity 
by DHS or other law enforcement agencies.
  This prohibition is urgently needed, as redacted documents released 
pursuant to a FOIA request by the Partnership for Civil Justice Fund 
(PCJF) show that the DHS ``Threat Management Division'' directed 
Regional Intelligence Analysts to provide a ``Daily Intelligence 
Briefing'' which includes a category of reporting on ``Peaceful 
Activist Demonstrations,'' alongside their reports on ``Domestic 
Terrorist Activity.'' The documents also showed involvement of the DHS 
National Operations Center (NOC) in monitoring peaceful, lawful protest 
activities. The NOC is, according to the DHS, ``the primary national-
level hub for domestic situational awareness, common operational 
pictures, information fusion, information sharing, communications, and 
coordination pertaining to the prevention of terrorist attacks and 
domestic incident management. The NOC is the primary conduit for the 
White House Situation Room and DHS Leadership for domestic situational 
awareness and facilitates information sharing and operational 
coordination with other federal, state, local, tribal, non-governmental 
operation centers and the private sector.'' DHS improperly and 
unconstitutionally conducted surveillance of peaceful, 
constitutionally-protected protests in cities that include, among 
others: Asheville, Atlanta, Boston, Buffalo, Chicago, Dallas, Detroit, 
Denver, El Paso, Fort Lauderdale, Houston, Jacksonville, Jersey City, 
Kansas City, Lansing, Lincoln, Los Angeles, Miami, Minneapolis, Niagara 
Falls, New York City, Oakland, Philadelphia, Phoenix, Portland, OR, and 
Salt Lake City, San Diego, Seattle, Tampa, Washington, D.C.
  The intent of Congress with the DHS appropriations bill is to 
prohibit the Department of Homeland Security from using the designation 
of an event as one of ``national significance'' or as a ``National 
Special Security Event'' (NSSE) to infringe on the constitutional right 
to protest peacefully and engage in nonviolent civil disobedience on 
the nearest publicly-owned, publicly-accessible, or private land (where 
the owner has not formally requested that protesters be removed) 
surrounding such an event.
  The intent of Congress with this legislation is strictly to prohibit 
the Department of Homeland Security, or any other agency or entity with 
which the DHS is directly or indirectly cooperating, including the 
Secret Service, or that DHS is directly or indirectly funding, from 
using an NSSE designation as a basis to require protesters to be in a 
location that is not within view of those individuals or entities that 
are the target of the public expression and efforts at redress, or to 
place persons inside a penned-in area or ``protest pit,'' as such a 
location deprives the people of the United States of their ability and 
right to communicate a message to their intended audience, and also 
deprives persons of their associational rights to interact with 
demonstrations and join them without obstruction. Further, it could 
contribute to a larger divide between the political and economic 
establishment and the general public that is antithetical to the proper 
functioning of a democratic system. Even if an event is not designated 
as an NSSE, the intent of Congress is for the principles expressed 
above to be applicable to any constitutionally-protected protest or 
other expressive activity.
  In the past, these events have included not only presidential 
inaugurations and meetings of foreign dignitaries, but also the Super 
Bowl, the funerals of Ronald Reagan and Gerald Ford, most State of the 
Union addresses and the 2008 Democratic and Republican National 
Conventions, among many other events not traditionally deemed to be 
requiring such a major precautionary designation.
  The intent of Congress is to mandate that the DHS be authorized only 
to conduct searches, including searches of electronics on citizen or 
non-citizen travelers entering or exiting the United States, under a 
reasonable suspicion standard articulated by courts under the Fourth 
Amendment.
  Congress also strongly intends to reject and condemn DHS assertions 
that ``intuition and hunch'' are a sufficient basis for its agents to 
conduct searches of electronics at U.S. borders or ports of entry. 
Congress specifically intends to reject a February 2013 DHS report 
concluding that ``imposing a requirement that officers have reasonable 
suspicion in order to conduct a border search of an electronic device 
would be operationally harmful without concomitant civil rights/civil 
liberties benefits.'' Congress intends to express its condemnation of 
any search that is the result of a mere ``intuition'' or ``hunch,'' of 
the 6,500 persons that DHS data indicate had their electronic devices 
searched along the U.S. border between 2008 and 2010. Furthermore, 
Congress finds that the use of ``intuition and hunch'' as a basis for 
searches is a violation of the Fourth Amendment, and therefore that 
appropriated funds under this bill are prohibited from being used in 
this manner.
  With this bill, the intent of Congress is to demand the modernization 
of standards relating to Americans entering the U.S. with computers, 
thumb drives, smartphones, cameras and other electronic devices, as 
these devices hold vast amounts of information regarding owners about 
who they are and how they conduct business. Much of the law on searches 
along the border was established before these technological advances 
dramatically altered

[[Page E875]]

the amount of personal information one could be carrying on himself or 
herself as he or she enters the U.S., and Congress intends for this 
amendment to modernize these standards to reflect current realities and 
expectations of privacy. Until these standards are modernized, Congress 
intends for border enforcement to search these devices only upon a 
reasonable suspicion that the holder of such a device is directly and 
personally bearing evidence of terrorism or other criminal activity.


                            Organized Labor

  The intent of Congress with this bill is to place an absolute 
prohibition on any DHS involvement related to all legally-protected 
activities of organized labor. This includes any communication, 
cooperation, funding, assistance, or other association with another 
organization for the purpose of targeting legally-protected union 
activity, or acting as a provider of surveillance and intelligence 
information to corporate entities that may be the target of lawful 
labor grievance and labor protest activity.
  Examples of what Congress has hereby prohibited can be seen in 
documents obtained under the Freedom of Information Act, which show 
that the DHS communicated with the Pentagon's Northern Command 
regarding November 2, 2011 port protests involving ILWU workers. 
Another document obtained from the Federal Bureau of Investigation 
(FBI) by the PCJF shows that the Domestic Security Alliance Council 
(DSAC), described by the federal government as ``a strategic 
partnership between the FBI, the Department of Homeland Security and 
the private sector,'' discussed the protests at the West Coast ports to 
``raise awareness concerning this type of criminal [sic] activity.'' 
The document contains a ``handling notice'' that the information is 
``meant for use primarily within the corporate security community. Such 
messages shall not be released in either written or oral form to the 
media, the general public or other personnel . . .''

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