House Democrats Have The Power To Protect Our Web Surfing From Warrantless FBI Searching; Instead, They're Pointing Fingers

from the not-a-good-look dept

You would think that House Democrat leaders like Speaker Pelosi and Reps. Adam Schiff and Jerry Nadler, who helped lead the impeachment effort against President Trump, would leap at the chance to stop Trump and the FBI from conducting warrantless searches of Americans' internet browsing habits. Instead, they seem to be supporting it and are trying to scapegoat Rep. Zoe Lofgren -- who is trying to safeguard our internet surfing -- because she's dared to push for a fix to the law. At issue is the FISA renewal bill, in which Congress has decided to take the FBI's "backdoor searches" out of the backdoor and moved them around the front: explicitly allowing the FBI to go trawling through internet/browsing/search histories collected without a warrant by the NSA.

As we've discussed, over in the Senate, Senator Ron Wyden and Steve Daines pushed for a pretty straightforward amendment to say that these searches should require a warrant (yes, the 4th Amendment alone should require that, but... ) and their amendment fell just one vote short. So even though significantly more than half of the Senate voted to require a warrant, the bill that passed out of the Senate does not require a warrant. The ball then moved to the House side, and you'd think that leadership there should just put in a similar amendment -- and, indeed, Rep. Lofgren had one ready to go. This shouldn't be a surprise. Lofgren has fought to end backdoor searches for years.

However, a story in Politico argued that Lofgren's Amendment somehow threatened to "blow up" a well-orchestrated Congressional move to make sure the FBI could keep spying without a warrant. Dell Cameron, over at Gizmodo, breaks down just how ridiculous this whole story is, and how it appears that it's actually Speaker Pelosi and Rep. Schiff who want to let the FBI warrantless searches continue, and they've strong-armed Rep. Nadler into supporting this position (Nadler, who is terrible on copyright issues, usually is pretty good on civil liberties), while trying to pin any "blame" on Lofgren.

Much of the story covers shenanigans to box out Lofgren back in February when she sought to add her version of the Wyden/Daines Amendment:

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.

And when Lofgren met that deadline... Nadler cancelled the markup, effectively blocking the amendment from a vote. And this wasn't for lack of interest:

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.

And so now that the bill is back on the House's plate, Nadler is the official roadblock to getting this amendment in, though it sounds like Pelosi and Schiff are putting on the pressure from behind the scenes.

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.”

Lofgren and others are now pushing to get their amendment back on the agenda, and it sure sounds like Schiff and Pelosi are trying to stop it, with Nadler -- whose public statements seem to indicate his support, but his actions show otherwise -- the key to actually making a decision.

I still find it bizarre that this amendment is even remotely controversial. First, it's just making it clear that the 4th Amendment applies. Second, if bad shit is happening, the FBI can still get a warrant. Third, both Democrats (stop Trump from abusing his powers) and Republicans (stop the deep state from surveilling Americans) have ready-made stories to explain their votes.

So what's the damn holdup?

Filed Under: adam schiff, backdoor searches, browser history, fbi, fisa, fisa renewal, jerry nadler, nancy pelosi, nsa, patriot act, surveillance, zoe lofgren

Bizarre: Democrats In Congress Agree To Give Trump More Of The Spying Powers He Complains Were Abused Against Him

from the someone-explain dept

If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI's abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program -- the phone metadata surveillance -- has been shown to have been a huge, wasteful mess that has been effectively useless.

And it's up for renewal. So just kill it.

But, no, that's not how Congress works. Instead, earlier this week, the House worked out a bipartisan "compromise" that lets them each claim victory -- when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers -- the very same powers that the Trump administration has been insisting are being abused by "the deep state" against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff -- who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be -- watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.

Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

She goes on to detail the rather sneaky language in the bill that seems designed deliberately to give William Barr could use the program to hide some pretty scary shit:

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

I'm sure that won't be abused at all...

Of course, Bill Barr is thrilled with this outcome:

"I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.

I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.

It is of the utmost important that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support."

Because none of this makes sense any more, the bill has both bipartisan support -- and bipartisan opposition, with the opposition coming from those who tend to actually fight to protect our civil liberties from either party. CNN has some of the details:

But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.

In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.

"It's not real reform," said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.

On the Senate side, Senators Rand Paul, Mike Lee, and Ron Wyden have all complained about the bill as well -- with threats to block and requests for Trump to veto the bill.

And, of course, privacy advocates are reasonably concerned about this as well. The ACLU has asked Congress to vote against the bill:

Over the last several years, it has become abundantly clear that many of our surveillance laws are broken. The Foreign Intelligence Surveillance Court is not equipped to protect Americans’ rights -–with an Inspector General report finding a litany of errors in the government’s applications to the court to surveil Trump campaign advisor Carter Page. During a House hearing last month, FBI Director Christopher Wray agreed with the characterization of at least a portion of the surveillance of Carter Page as illegal. Also last month, the FISC court itself accepted the Justice Department’s position that at least two of the surveillance applications for spying on Page were “invalid” and the court took extraordinary steps to order the government to try to remedy its wrongdoing and avoid a repeat. Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process.

At the same time, Section 215, which is one of the Patriot Act provisions set to expire on March 15th, has been used to engage in large-scale collection of Americans’ information, and the call detail record program operated under the authority has been suspended following compliance violations that resulted in unlawful collection of information.

Despite this record, disappointingly, the reforms contained in H.R. 6172 are minimal –in many cases merely representing a codification of the status quo. In addition, the bill contains provisions that would be a step back from even our flawed current law, including an additional criminal penalty. Given this, we believe that a short six week extension of the expiring

One hopes the criticism of the bill -- and the bizarre situation of Trump possibly signing a bill that continues the program he's been railing against (while pretending to limit it) -- leads this bill to die.

Filed Under: adam schiff, carter page, fisa, fisa renewal, house, mass surveillance, section 215, senate, surveillance, trump administration