No one yet knows what deal, if any, House Speaker Nancy Pelosi and GOP Leader Kevin McCarthy will strike on surveillance before three Patriot Act provisions expire on Sunday. Negotiations, as of Tuesday afternoon, remain as unsettled as they are frantic.
But according to four sources familiar with the talks, reforming the Patriot Act isn’t driving the talks. All sides, in fact, are ready to bring back the most controversial surveillance law of the George W. Bush era. The Democratic leadership backing the Patriot Act is trying to cut a deal with Republicans who want to avenge Carter Page, the ex-Trump campaign adviser whom the FBI put under surveillance.
At immediate issue are three vanishing aspects of the surveillance state erected after 9/11. Section 215, known as the “business records” provision, lets the FBI compel companies to warrantlessly provide an expansive array of customer data. The “roving wiretap” provision lets the FBI follow suspects across their various phones. And the “lone wolf” provision lets the FBI spy on terror suspects who have no connection to banned foreign terrorist organizations—but the FBI has never used it.
But the immediate issue isn’t the actual issue. In December, the Justice Department inspector general found that the FBI withheld relevant information from the surveillance panel known as the FISA Court when seeking to maintain its wiretaps on Page. House Republicans, backed by President Donald Trump, have made that into the centerpiece of the surveillance misconduct they want to fix—however much critics of overbroad post-9/11 surveillance would prefer it be about restricting the government’s ability to spy on millions of Americans not connected to Trump.
The expiring Patriot Act provisions are leverage for Republicans in the discussions—since the House Democratic leadership has consistently backed them, to great progressive dismay. They simply “have nothing to do with the Carter Page saga,” said Rep. Mike Quigley, an Illinois Democrat on the intelligence committee.
The aspects of the Foreign Intelligence Surveillance Act, or FISA, that permitted surveillance on Page concern procedures for targeting individual American citizens, not providing law enforcement with large amounts of data. In other words, some individual targets of U.S. surveillance may get some additional protections—something no civil libertarian considers trivial. But most people caught in the security state’s electronic dragnets are going to be out of luck.
One legislative fix would make the attorney general personally affirm to the FISA Court that surveillance applications on elected federal officials or candidates are free of shenanigans. (Hope you trust Bill Barr on that.) Related proposals would compel the Justice Department to detail for the FISA Court why less intrusive means of spying aren’t enough for the FBI in a given case; as well as increasing the fines and potential prison time for misleading the Court. Some of these strike observers as less than substantial: Every Justice Department attorney who goes before the FISA Court already swears that the material they’re presenting is truthful and accurate.
Two weeks ago, Rep. Zoe Lofgren, a California Democrat and privacy advocate, upended the House Judiciary Committee’s proposed Patriot reauthorization by proposing greater civil-liberties protections. Meanwhile, Attorney General William Barr told Senate Republicans he wanted what FBI Director Christopher Wray wanted: a straight re-up of the Patriot Act. But President Trump last week told Republicans the opposite—that he wanted fixes for cases like Page. The House Democratic leadership is closer to Barr’s position than Trump’s. And House Republicans, in a recent hearing with Wray, voiced their support for the Patriot provisions, even as they sounded their No More Carter Pages alarms. The surveillance debate in the Trump era basically takes intrusive post-9/11 surveillance for granted.
The current discussions contain at least some constraints on the Patriot Act. A House intelligence committee official said that negotiations include restrictions on the intelligence agencies’ ability to “access GPS and cell site information,” which are both goals of privacy reformers. But as of Tuesday afternoon, language restricting what data the agencies can consider “relevant to” an ongoing investigation—and accordingly collectable under Patriot—did not appear to be under consideration.
And the NSA’s Call Detail Records program, all sources agreed, is ruled out, as The Daily Beast first reported. That’s the NSA’s blighted and shuttered program to get what amounts to a giant social graph from telecommunications firms through analysis of massive amounts of Americans’ phone records.
Privacy activists aren’t happy with what’s taking shape, but they see at least some silver lining—particularly because the last time Congress considered surveillance reforms, it created the Call Detail Records program.
“Today, the debate is about how many more reforms need to be made, not given up,” said Sean Vitka of Demand Progress. “That’s measurable progress against some of the most entrenched political machinations in D.C., which just days ago threatened to pass a ‘clean’ reauthorization of these authorities by attaching them to the emergency Coronavirus spending package. But the apparent threat that Chairmen [Jerrold] Nadler and [Adam] Schiff and Speaker Pelosi may yet abandon privacy priorities to strike a deal that Republican surveillance hawks support reveals that this battle is far from over.”
Underscoring that point, on Monday night, Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.), released a bill circumscribing the Patriot Act for privacy purposes and meaningfully constraining cases like Carter Page’s. An adversarial lawyer would be able to contest government surveillance applications to the FISA Court involving “ a public official, candidate, religious or political organization or staff thereof,” as well as journalists. And it would prevent warrantless Patriot Act data-collection orders if police “would require a warrant for the same search.” But the House bipartisan leadership doesn’t appear likely to go that far.