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

Republicans and Democrats engrossed in a fight over the future of privacy in America say the public support of a specific influential Democrat is likely critical to secure a vote next week on an amendment that would prohibit FBI agents from demanding Americans’ web browsing data 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 effort believe the support of another lawmaker will be key to pushing the reform over the precipice: that of 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.

The U.S. Senate voted last week to reinstate three surveillance tools through the bill, which is widely seen as crucial to FBI national security investigations. They include allowing the FBI to acquire “business records” under Section 215 of the USA Patriot Act; “roving wiretaps” to counter the evasion tactics of terrorists who use “burner” phones and laptops; and to grant it the authority to eavesdrop on so-called lone-wolf terrorists without first tying them to a foreign power or known terrorist group.

Last Wednesday, a bipartisan amendment requiring the FBI to obtain a warrant before demanding access to web browser and search histories of U.S. citizens allegedly “relevant” to national security investigations 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 were 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 headed 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 in cases involving First Amendment activities. It would further codify a requirement that the FBI’s lawyers supply the secret court with all exculpatory evidence at its disposal—something the bureau 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 would head back into the hands of House Democratic leaders, who had previously—and apparently inaccurately—claimed that only their “very carefully negotiated reform bill of FISA” could prevail in both chambers.

According to a source close to the efforts, members of the House Rules Committee, chaired by Chairman George McGovern, may convene as early Wednesday to decide if House lawmakers should be allowed to amend it further. A vote is anticipated by next week.

The GOP could not have vied for a better outcome. The Republican-controlled Senate nearly passed privacy protections that high-profile Democrats in the House openly opposed, ostensibly under the belief that Mitch McConnell, the Senate majority leader, would never permit it. And even though 27 Republicans voted against the Wyden-Daines amendment, the blame has been dropped at the feet of Democratic caucus members who failed to even appear for the vote, including Sen. Bernie Sanders, whose whereabouts that day remain a mystery.

Republican and Democratic aides, granted anonymity to speak frankly about the FISA negotiations, portray Nadler as the fulcrum for potential further reforms. 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 now seem to have stripped the Democrats of their seemingly inexhaustible justification for inaction on privacy reform—the so-called “McConnell roadblock.”

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Three House staffers with knowledge of the judiciary process, who represent both parties, insisted that Nadler’s public support for the Wyden-Daines amendment would now put the House speaker, who is perceived to oppose the protections, 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 at least vocally supported reforming some of the Patriot Act’s most controversial provisions for over a decade, sources said she might quietly oppose any effort to do so now, possibly 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. Republican and Democratic negotiators, meanwhile, insist that they had enough votes in the House to pass it. Nevertheless, Nadler quickly canceled a Judiciary Committee hearing on February 26 after Lofgren submitted her own version of Wyden-Daines.

A story in Politico Pro printed that same day pinned the blame entirely on Lofgren, whose amendment its reporters falsely portrayed as some “last-minute maneuver” that “threatened to sink” Nadler’s months of hard 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, whose influence over Nadler (vis-à-vis Pelosi) is described as an “open secret” on Capitol Hill.

Both Republican and Democratic staffers privy to the negotiations painted Politico’s accounting of events as erroneous. A timeline of the negotiations shared with Gizmodo, which was compiled from notes and communication logs immediately after the story ran, shows that Lofgren and her allies had been pressing the Judiciary Committee about amendments to Nadler’s bill as early as February 10.

Requests to see the text were repeatedly denied, the sources said. The same FISA reformers reportedly reached out to the committee on February 12, saying that, if adopted in the form of amendments, parts of Lofgren’s bill would ensure that Nadler’s FISA re-authorization push was even more bipartisan. The Judiciary Committee reportedly turned over a draft copy of the bill the following day, but warned that “substantial revisions” were already in the works. About a week later, the updated text was still not available.

According to this timeline, the authors of the Lofgren-Davidson amendment would not see the final text of the bill until Friday, February 21. Minus the weekend, that gave staffers roughly 24 hours to work alongside legislative counsel to draft the amendment in a way that comported with Nadler’s bill. The Lofgren-Davidson amendment was finally handed over to the Judiciary Committee that Tuesday, a full 24 hours before the markup hearing, meeting the committee’s requirements.

In an email to Gizmodo, Lofgren described the Lee-Leahy amendment as a step closer to “properly protecting Americans’ civil liberties.” Yet it is clear that Congress needs to go even further, she said.

“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, who has direct knowledge of the negotiations, told Gizmodo that Nadler had effectively burned the Democrats by cancelling the markup hearing. The appetite for reform was certainly there, they said. Not only did the Democrat’s progressive wing and the libertarian House Freedom Caucasus support it, but many other Republicans, who’ve never shown interest in privacy reform, would have campaigned on curtailing the FBI’s authority.

It would have been useful in an election year, the staffer said, if only because President Trump has so frequently and publicly accused the FBI of breaking the law.

The same Republican said that true civil libertarians in the GOP knew that the protections included initially in the House bill would do little, if anything, to actually shield Americans from being spied on by their own government. They pointed specifically to a measure in the original text that requires the attorney general—currently, William Barr—to personally sign off on surveillance, but only if it’s a candidate for office being targeted. That holds the potential, they said, to pull the attorney general into a conspiracy, but does not otherwise provide any real oversight of FBI surveillance.

During a March 10 meeting of the House Rules Committee, Nadler capped off his remarks by knocking his own bill, saying that,“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 the pressure on Nadler to kill the Lofgren-Davidson amendment was coming “from all sides,” and that cancelling the February hearing was probably not his own decision. Both staffers stopped short of fingering Pelosi and Schiff, but said that “House leaders,” including “other committee chairs,” were likely involved in that effort.

Questioning what it all means for the future of the Democratic party, which has long portrayed itself as the defender of Americans’ civil liberties, one Democratic aide said: “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?’ 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,” Rep. Davidson said in an email. “Without this amendment, I strongly oppose reauthorization, and I urge my colleagues to do the same.”

Gizmodo contacted three of Nadler’s top aides for a comment on Tuesday, but received zero responses.