A brewing fight in the U.S. House of Representatives over the future of internet privacy came to head on Thursday during a Democratic caucus call in which party leadership allegedly misportrayed the position of one of their most senior members.
Two sources with direct knowledge of the call, who were granted anonymity to speak frankly about the confidential discussion, said that a Democratic leader claimed the chairmen of the House Intelligence and Judiciary Committees were both onboard with setting aside normal voting procedures in the House in order to reauthorize three key FBI surveillance tools deemed critical to national security.
Judiciary Chairman Jerrold Nadler and Intelligence Chairman Adam Schiff were both said to be prepared to support a suspension vote, a risky maneuver that would limit floor debate and block further attempts to amend the USA FREEDOM Reauthorization Act, the source of the surveillance authorities that expired March 15.
Suspending the rules would place the carefully negotiated surveillance package at considerable risk. A two-thirds supermajority would be required for it to pass, and if the procedure failed, the negotiations would return to square one. Several privacy protections adopted by the Senate last week—namely, the Lee-Leahy amendment—could be jeopardized in the process.
Yet, Nadler was not on the call himself, and a Judiciary Committee spokesperson vehemently denied he would back a suspension vote. Nadler could not join the call, they said, because he was visiting his wife in the hospital at the time.
It remains unclear what caused the disconnect. Sources were unable to disclose which leading Democratic member had made the claim.
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An effort to outlaw the government’s ability to collect the internet browsing data of American citizens without first obtaining a search warrant is gaining momentum in the House and fomenting discord among the Democratic ranks. The situation has given birth to some unusual alliances. A high-profile Republican lawmaker and close ally of President Trump has voiced support for an amendment to limit the FBI’s spy powers even as some of the most powerful Democrats in the House are avoiding it.
Two Democratic aides told Gizmodo on Thursday they had significant concerns about the future of the party as a defender of Americans’ civil liberties. One expressed concern that Republicans would campaign on the bill and paint themselves as the true champions of privacy reform.
Bipartisan lawmakers working to force a vote on an amendment to prohibit warrantless spying on internet activity under the USA Patriot Act had hoped to solicit the support of Nadler, who as head of the Judicial Committee has primary jurisdiction over the intelligence-gathering tools at the heart of the intra-party conflict.
Last week, the Senate voted to reinstate the surveillance powers that enable the FBI to seize certain electronic records linked to terror suspects and track them when they adopt tactics to evade digital surveillance, even if they cannot be tied to a foreign power or established terrorist group.
Nadler has thus far not extended the support that the progressives and civil libertarians desire. The private conversations of congressional aides this week have all but drained any hope he will do so.
During the Thursday call, which included an estimated 100 Democratic staffers—many of them working at home amid the ongoing coronavirus threat—a Nadler aide was asked where the chairman stood on the matter, according to three sources familiar with the discussion, including one who was on the call. The aide reported responded that Nadler had directly informed them that he did, in fact, support the idea of banning intelligence agencies, including the FBI, from collecting the browser histories of U.S. citizens without a warrant.
But asked if Nadler would be willing to join a public call of support for an amendment to accomplish it, the aide said the answer was no.
All sources in this story were granted anonymity because the exchanges they shared were part of confidential discussions.
A spokesperson for the House Judiciary Committee told Gizmodo that Nadler, who represents lower Manhattan, had spent his entire career fighting to reform some of the nation’s most invasive surveillance programs, including those authorized under the Patriot Act.
“This bill does exactly that, reforming the government surveillance program,” the spokesperson said. “A clean reauthorization, proposed by [Attorney General William] Barr and others, would be a total disaster and that is exactly what the Chairman is trying to stop from happening.”
Despite his constituency’s proximity to the 9/11 attacks on the World Trade Center’s twin towers, Nadler is one of only 66 current and former U.S. representatives to have voted against the original Patriot Act a month later. U.S. intelligence agencies have repeatedly abused the authority to conduct unlawful mass-surveillance on American soil.
Rep. Doug Collins, a Georgia Republican elected in 2012, who until mid-March was the ranking member of the Judiciary Committee, came out in support of limiting the FBI’s powers on Thursday.
“Under no circumstance should the government be allowed to access Americans’ internet browsing data without a search warrant,” Collins tweeted, adding that, “Speaker Pelosi should immediately schedule a House vote on the Daines-Wyden amendment.”
The Wyden-Daines amendment, which came only one vote shy of passing in the Senate last week, would have attached the warrant requirement to the re-authorization act. Two Democratic caucus members who could not cast votes because they weren’t physically present, said they would have voted in favor.
On Wednesday, two U.S. representatives, Warren Davidson, a Republican of Ohio, and Zoe Lofgren, a Democrat of California, called on the chairman and ranking member of the House Rules Committee to allow a vote on an amendment that would accomplish the same goal.
Lofgren and Davidson previously attempted to replace the surveillance re-authorization bill in February, but they were halted by Nadler who canceled his own committee’s hearing to prevent it.