Less than a day after two members of the House of Representatives salvaged an amendment to block federal law enforcement from secretly accessing Americans' private web and browser search histories, the proposal has lost support and faces an unclear future.
Reps. Zoe Lofgren (D–Calif.) and Warren Davidson (R–Ohio) announced on Tuesday that they had successfully revived a Senate amendment to the USA Freedom Reauthorization Act (H.R. 6172) that would stop the FBI and other federal agencies from using the Foreign Intelligence Surveillance Act (FISA) court to secretly obtain Americans' online records from third parties, such as internet service providers.
Initially introduced by Sens. Ron Wyden (D–Ore.) and Steve Daines (R–Mont.), the amendment died in the Senate by a single vote earlier in March due to the absence of several senators, some of whom may have voted in favor had they been present. This past weekend, Lofgren and Davidson coordinated a plan to revive the amendment for reconsideration in the House.
But cracks developed Tuesday evening within the bipartisan coalition, and now it appears Wyden is withdrawing his support for Lofgren and Davidson's adaptation of his amendment. The New York Times reports that House Intelligence Committee Chair Rep. Adam Schiff (D–Calif.) suggested that the bill doesn't protect Americans as thoroughly as Wyden and Lofgren say it does. Charlie Savage at The New York Times reports that:
Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders "to seek to obtain" an American's internet information.
That formulation left open the possibility of interpreting the potential new law as banning only deliberate attempts to collect an American's data, leaving the F.B.I. free to ask for lists of all visitors to websites despite the risk that the list may turn out to incidentally include some Americans.
One traditional means by which courts interpret ambiguously written statutes is by looking at evidence of legislative intent—like statements by lawmakers explaining what they believed a bill would do before a vote—so such statements may in part be an attempt to create fodder to argue about what the compromise language means in future litigation.
Because Schiff suggested that the amendment could be interpreted by law enforcement to allow for the incidental collection of Americans' browser and search records, Wyden subsequently pulled his support for Lofgren's and Davidson's version and suggested that his original version be reconsidered. Progressive tech privacy group Demand Progress put out a statement Tuesday night in which it opposed Lofgren's and Davidson's amendment and encouraged representatives to vote against the Lofgren-Davidson amendment and the underlying USA Freedom Reauthorization Act, to which their amendment (or Wyden's) would be attached.
This morning, Lofgren and Davidson defended their amendment at a House Rules Committee hearing that seemed mostly supportive, though some committee members echoed concerns that the House version did not adequately shield Americans from secret surveillance or preserve Fourth Amendment due process protections.
At the hearing, Lofgren said she didn't believe there was any ambiguity in her amendment (read it here), but that if there were any doubts, she'd be happy to support an amendment that more precisely mirrored the Wyden-Daines Senate amendment (read it at the top of the first page here), which bluntly forbids the feds from any order calling for the collection of "internet website browsing information or internet search history information."
Lofgren was polite about Schiff's comments but insisted there was really no ambiguity in the wording of her amendment. She also noted that the Senate passed another amendment to the bill that requires the FISA court to consult with an independent adviser should government officials attempt a "novel" interpretation of the law that would grant them access to the private records of Americans or people legally in the United States.
Davidson, as a Republican, was much blunter.
"Schiff has attempted to fracture the coalition by saying things he's known to be false," Davidson said. Schiff, along with Rep. Jerry Nadler (D–N.Y.), is a cosponsor of the USA Freedom Reauthorization Act. As I've noted previously, their proposed reforms to the surveillance law, while welcome, are very mild. The reauthorization formally eliminates the mass metadata collection program revealed by National Security Agency (NSA) whistleblower Edward Snowden. But the NSA had already abandoned this program because it consistently violated Americans' privacy while not actually helping catch terrorists.
Amendments like those from Wyden and Lofgren are intended to shore up the rather limp reforms offered by Schiff. Despite criticisms that the bill is not protective enough, the Senate's edition of the FISA advisor amendment cited by Lofgren and the House's consideration of the Wyden-Daines amendment led the Justice Department to revoke its support. Assistant Attorney General Stephen E. Boyd put out a statement this morning opposing the amended renewal bill as well as Lofgren's proposed amendment, claiming the bill will damage the Justice Department's ability "to identify and track terrorists and spies." The DOJ is recommending that Trump veto the legislation.
Trump tweeted out last night that he hoped House Republicans would vote against reauthorization, perhaps because no one told him that House Republicans already voted in favor of the weaker reforms before they were sent to the Senate:
I hope all Republican House Members vote NO on FISA until such time as our Country is able to determine how and why the greatest political, criminal, and subversive scandal in USA history took place!
— Donald J. Trump (@realDonaldTrump) May 26, 2020
In March, House Republicans voted in favor of the bill 126-60. Democrats voted in favor 152-75, so neither side proved particularly heroic in fighting for Americans' data privacy.
The Rules Committee has not yet voted on the Lofgren-Davidson amendment but is expected to do so today. The House may take up the bill as soon as this evening.
Rep. Tulsi Gabbard (D–Hawaii) and Rep. Louis Gohmert (R–Texas) independently introduced amendments that, like the one proposed in the Senate by Sen. Rand Paul (R–Ky.), would prohibit the FISA Court from authorizing surveillance of U.S. citizens entirely. Paul's amendment went down in flames in the Senate, and the Gabbard and Gohmert amendments are expected to fare similarly in the House.
Updated at 9:45 p.m.: The Wall Street Journal is reporting that the bill has been yanked by Democrats after Trump tweeted a threat to veto the bill and Republicans voted as a block in a failed attempt to stop the bill progressing to the debate stage. Even though Democrats control the House, the reauthorization has enough Democratic opposition to kill it if all the Republicans vote against its passage.