FBI Power to Warrantlessly Seize Your Web Browsing History May Hinge on a Single Democrat

ByJack Burton

May 20, 2020 fbi, fisa, privacy, surveillance, usa freedom reauthorization act

Republicans and Democrats engrossed in a fight over the future of privacy in America say the public support of a specific influential Democrat is critically important to secure a vote next week on an amendment to prevent federal agents from seizing Americans’ web browsing histories without a warrant.

With the distraction of a fatal pandemic and further economic destruction looming large in Washington, a bipartisan group of pro-privacy allies have been toiling remotely and behind the scenes to limit the FBI’s use of the Foreign Intelligence Surveillance Act (FISA) in defense of Americans’ liberties. And while the power to effect such change would now seem to rest squarely in the hands of House Speaker Nancy Pelosi, sources behind the efforts believe another lawmaker’s voice is key to pushing the reform over the precipice: the chairman of the powerful House Judiciary Committee, Rep. Jerrold Nadler.

Nadler is the original sponsor of the USA FREEDOM Reauthorization Act of 2020 and his committee has primary jurisdiction on FISA.

Last Wednesday, a bipartisan amendment that would have required federal agents to obtain a warrant before demanding the internet browsing and search histories of Americans deemed “relevant” to a national security investigation fell one vote shy of the negotiated 60-vote threshold. Four Senate lawmakers were not physically present for the vote on the Wyden-Daines amendment (named after its authors, Sens. Ron Wyden, a Democrat, and Steve Daines, a Republican) and simply marked absent. One of them, Sen. Patty Murray, a Democrat, reportedly told Politico that she would have supported the amendment but was stuck on a plane bound for the capitol at the time.

Privacy hawks in Congress nevertheless claimed another victory: passage of an amendment introduced by Sens. Mike Lee and Patrick Leahy, a Republican and Democrat, respectively. The Lee-Leahy amendment would add independent advisors with civil liberties expertise to the secret FISA court, particularly for cases involving First Amendment activities. It would further codify a requirement that federal agents supply the secret court with all exculpatory evidence in their possession—something the FBI failed to do in its now-infamous, self-ruinous investigation of Carter Page, the former Trump campaign advisor, whom it neglected to disclose was a one-time Central Intelligence Agency source.

Passage of the Lee-Leahy amendment meant the USA FREEDOM Reauthorization Act was headed back into the hands of Democratic leaders in the House, which had previously—and apparently inaccurately—asserted that only their “very carefully negotiated reform bill of FISA” could prevail in both chambers.

According to one source, members of the House Rules Committee, chaired by Chairman George McGovern, may convene as early Wednesday night to decide if the bill can be amended further. A vote on the bill is anticipated by the end of next week.

Had it tried, the GOP could not have vied for a better outcome. The Republican-controlled Senate nearly passed privacy protections that House Democrats openly opposed, ostensibly under the belief that Mitch McConnell, the Senate majority leader, would never allow it. And even though 27 Republicans voted against the Wyden-Daines amendment, the blame has largely fallen on members of the Democratic caucus absent during the vote, including Sen. Bernie Sanders, whose whereabouts at the time remain a mystery.

Republican and Democratic aides, granted anonymity to speak frankly about the FISA negotiations, portrayed Nadler as the fulcrum for additional reform. The New York congressman, whose district encompasses affluent to high-income parts of Manhattan and Brooklyn, shut down a bipartisan, bicameral effort to amend his own FISA bill in late February. Last week’s Senate vote, however, would seem to have stripped the Democrats of their exhausted justification for inaction on privacy—the so-called “McConnell roadblock.”

Three House staffers with knowledge of the judiciary process, who represent both parties, insisted that public support by Nadler for the Wyden-Daines amendment would likely put the House speaker in a precarious position politically. On Monday, over 50 organizations, including the American Civil Liberties Union, the NAACP, and FreedomWorks, called on Pelosi to reintroduce Wyden-Daines. She has yet to issue a response.

While Pelosi has vocally supported reforming some of the Patriot Act’s most controversial provisions for over a decade, sources said she might quietly oppose those efforts now, potentially at the behest of the House Permanent Select Committee on Intelligence, which the intelligence community lobbies to maintain and enhance its own power.

All sources emphasized that they were not in position to speculate on Pelosi’s thinking.

The House version of the Wyden-Daines amendment—cosponsored by Democratic Rep. Zoe Lofgren and Republican Rep. Warren Davidson—was killed off by Democratic leaders in February. Specifically, Nadler canceled a Judiciary Committee hearing on February 26 after Lofgren submitted her version of Wyden-Daines. A story in Politico Pro the same day pinned the blame entirely on Lofgren, whose amendment it reported was “a last-minute maneuver” that “threatened to sink” months of work.

One Politico tweet claimed that Lofgren was “about to blow up the House’s FISA renewal package that was carefully negotiated for months,” which had the support of both Nadler and House Intelligence Committee Chairman Adam Schiff.

Illustration for article titled FBI Power to Warrantlessly Seize Your Web Browsing History May Hinge on a Single Democrat

Both Republican and Democratic staffers privy to the negotiations painted Politico’s account as erroneous. A timeline of events shared with Gizmodo, which was compiled from notes and communications immediately after the story ran, showed that Lofgren and her allies had been pressing the Judiciary Committee for text of his bill as early as February 10, and had reportedly indicated Lofgren’s interest in pursuing amendments.

Requests for copies of the bill were repeatedly denied, sources said. The FISA reformers reportedly reached out again on February 12, saying that, if adopted in the form of amendments, parts of Lofgren’s bill would help make the surveillance re-authorization even more bipartisan. The Judiciary Committee turned over a copy of the bill the next day, but said “substantial revisions” were in the works. Nearly a week later, aides were told updated text was not ready.

According to this timeline, the authors of the Lofgren-Davidson amendment would not see the text until Friday, February 21. Minus the weekend, that gave staffers roughly 24 hours to work with legislative counsel to draft the amendment in a way that comported with the text of Nadler’s bill. It was handed over to the Judiciary Committee on that Tuesday morning, 24 hours before the markup hearing, which is the requirement.

Lofgren told Gizmodo by email that the Lee-Leahy amendment adopted by the Senate was a step closer to “properly protecting Americans’ civil liberties,” and yet it was clear Congress needed to go further.

“Specifically, most Americans know their web browsing history and search queries contain private, personal information, and yet the Senate failed to prohibit the Intelligence Community from taking your search history and web browsing history without a warrant,” she said. “The Wyden-Daines amendment would have addressed that, and it’s now the House’s responsibility to curb this violation of Americans’ rights.”

“I know it’s still within our grasp as lawmakers to push for the significant privacy reforms we need,” she added.

One Republican staffer told Gizmodo that the Democrats had burned themselves by not holding the hearing. The appetite for reform was there. Not only did the Democrat’s progressive wing and the libertarian House Freedom Caucasus support it, but many Republicans—who could otherwise not be considered privacy hawks—would have campaigned on it, using it to demonstrate their loyalty to President Trump who has openly accused the FBI of spying on his campaign.

The same Republican staffer said that true civil libertarians in the GOP knew that the protections originally included in the House bill would do little, if anything, to shield Americans from being spied on by their own government. They pointed specifically to a measure that requires the U.S. attorney general to sign off if a candidate for office is being targeted. That would pull the head of the Justice Department into a potential conspiracy, they said, rather than provide actual oversight.

During a March 10 meeting of the House Rules Committee, Nadler capped off his remarks by knocking his own bill, saying: “Although I know this bill is not a perfect vehicle—indeed, I there’s a lot to be desired that I would like to be in the bill that isn’t there yet—I will continue to press for additional reforms to FISA.”

Two Democratic aides said that pressure was coming “from all sides” to kill the Lofgren-Davidson amendment and that it was unlikely Nadler’s February decision was made unilaterally. Both stopped short of naming either Schiff or Pelosi, but said House leaders, including other committee chairs, were likely involved in the decision.

One questioned what it meant for the future of the Democratic party, which has long presented itself as the defender of Americans’ civil liberties. “We need to look at ourselves and say, ‘Why on earth is the Senate the body that is producing the more progressive government privacy legislation and not the House?” they said. “Why is that? I think the answer [requires] a long look in the mirror.”

“The Wyden/Daines FISA reform amendment is critical to preserving Americans’ Fourth Amendment protection from unlawful searches and seizures,” Davidson said by email. “Without this amendment, I strongly oppose reauthorization, and I urge my colleagues to do the same.”