Congress is poised to pass legislation that would place several powerful surveillance tools back into the hands of federal law enforcement agencies that have a history of abusing their authority. But bipartisan support is now mounting to increase privacy protections around Americans who’ve been spied on by their government for decades.
Remotely from homes and on Capitol Hill, teams of congressional staffers and non-governmental allies have been working to amend the USA FREEDOM Reauthorization Act to force the FBI to seek a warrant before covertly seizing the search and web browser history of citizens under provisions of the USA Patriot Act.
On Wednesday, two U.S. representatives, Warren Davidson, a Republican of Ohio, and Zoe Lofgren, a Democrat of California, called on two powerful members of the House Rules Committee to permit a vote on the issue that close aides say they’re sure to win.
The Lofgren-Davidson amendment is taken from a replacement bill the bipartisan pair attempted to introduce before the coronavirus epidemic sent the nation into lockdown. Democratic Rep. Jerrold Nadler, the chairman of House Judiciary Committee Chairman, hurriedly cancelled a hearing in February to block the amendment.
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Aides close to the surveillance negotiations between Nadler, the reauthorization act’s original sponsor, and Rep. Adam Schiff, chairman of the House Intelligence Committee, later fed Politico a story about Lofgren attempting to “blow up” months of hard work with a “last-minute maneuver.” But a timeline of events Gizmodo reported on Tuesday showed that Nadler’s committee knew of Lofgren and Davidson’s plans weeks in advance.
Many Democrats who opposed introducing enhanced privacy protections pointed to the Senate, saying Sen. Mitch McConnell, the majority leader, would never permit them to pass. They would later be served crow after the same protections—introduced as the Wyden-Daines amendment—fell one vote shy of passing.
Two Democratic caucus members who favored Wyden-Daines amendment could not vote due to being absent. One of them was on a plane headed for the capitol at the time. A third senator, a Republican trapped in quarantine, told Gizmodo by email he also supported the amendment.
The reauthorization bill nevertheless ended up being sent back to the House following the passage of a separate amendment that included other protections privacy hawks of both parties had fought for, including a requirement that law enforcement provide the supply the secret court with all exculpatory evidence at its disposal.
Lofgren and Davidson note the unfortunate confluence of events in their letter to Congressman James McGovern and Tom Cole, the chairman and ranking member of the Rules Committee, respectively:
While the amendment had the support of a large bipartisan majority of the Senate, it failed to pass the 60 vote threshold required by Senate rules. However, even this substantial vote is not a full indication of the level of support of this amendment. There are at least two Senators that indicated they would have voted in favor of Wyden-Daines, had they been able to be physically present to do so.
The lawmakers go on to say that the internet activity “opens a window into the most sensitive areas of our private life” and that without protection, intelligence officials would have nearly unfettered access “to information such as our personal health, religious practices, and political views.”
“Adoption of this amendment would secure a meaningful and bipartisan reform to existing powerful surveillance programs, so we ask that the committee give the House the same opportunity to vote on this reform as the Senate had,” they said.
Rules Committee members were expected to discuss rules for voting on the reauthorization act as early as Wednesday, Gizmodo was told. Congressional aides, granted anonymity to speak frankly about the discussions, said there had been considerable pressure in the House “from all sides” to kill the amendment in February. One aide said the pressure stemmed from the intelligence community’s own lobbying efforts.
Rep. Jerrold Nadler, the chairman of the House Judiciary Committee, which has primary jurisdiction on FISA, is considered a potential roadblock, sources said, though he’s also openly supported privacy reform in the past and is viewed as a powerful potential ally.
U.S. intelligence agencies, including the FBI, which investigates espionage and terrorism threats domestically, have repeatedly been caught overusing and abusing their surveillance authorities. In 2013, former NSA contractor Edward Snowden revealed in a series of classified leaks that the government was collecting billions of domestic telephone records under Section 215 of the Patriot Act, which courts later ruled unlawful.
In 2015, it was revealed that the Justice Department and the Drug Enforcement Administration had been logging virtually every call placed outside the country to 116 countries, including Canada, as part of the War on Drugs. By the time it was discovered, the program was already discontinued, but is said to have carried on for two decades.
A Republican aide told Gizmodo on Tuesday the moment was ripe for passing sweeping privacy reform, but also warned it would not last forever. The influence of Democratic progressives and Republican libertarians, both of which strongly oppose domestic government surveillance, has risen over the past two years. But they’ve suddenly acquired another unlikely ally: Republicans campaigning on their allegiance to President Trump.
The Trump Republicans would have no problem voting to rein in the authority of the FBI, which Trump has lambasted as “corrupt” for years over the surveillance of his one-time advisor Carter Page.