The congressional effort to rein in the government’s surveillance powers before a looming deadline on March 15 could run up against a new opponent: a new coronavirus.
House Democrats have been working on plans to further amend a provision of the Patriot Act, which as of 2015 provides a way for the government to get American citizens’ phone records from telecom companies. This and other key provisions of the Patriot Act must be reauthorized by March 15, or the surveillance authority lapses. The Democrats’ amended bill would pull the provision’s authorization while allowing and tweaking other other ways the government collects records.
But those negotiations have been thrown off track, with critics of the spying program alarmed by the possibility that congressional leaders may try to use the coronavirus outbreak — and the coinciding legislation to fund a response — as a vehicle to muscle through an unamended extension or reauthorization.
The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.
The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”
“I would say it is still chatter at this point. But it is also chatter that could become their Plan A,” a Senate Republican aide, who requested anonymity because they are not authorized to speak on the matter, told The Intercept.
Josh Withrow, senior policy analyst at the GOP-leaning libertarian organization Freedom Works, said that he has heard from a number of his sources on Capitol Hill on both sides of the aisle that the coronavirus vehicle is a looming threat. “It’s a real fear,” he said. “It obviously seems to have some legs, but I think they’d run into a little bit of a problem with that, because they already have a lot of conservatives questioning the dollar amount and saying, just pass a clean coronavirus.”
The program in question is the “call detail records” program, which sets out how the FBI or NSA can obtain phone records stored by telecom providers. Prior to that, the NSA collected phone records in bulk, relying on a secret interpretation of the Patriot Act that a federal appeals court disputed in 2015.
But due to widespread compliance issues and limited intelligence value, the NSA voluntarily shut down the call details records program in 2019, leading many in Congress to question why the Trump administration was seeking to extend the legal basis for a now-defunct program. Civil liberties groups now see the reauthorization fight as a bellwether for whether Congress can bring itself to roll back surveillance authorities even in cases where the intelligence community determines they have limited intelligence value.
On Wednesday, the House Judiciary Committee had been scheduled to meet to vote on the product of closed-door negotiations between Judiciary Committee Chair Jerry Nadler, his counterpart on the intelligence committee Rep. Adam Schiff, Republicans, and the intelligence community.
Rep. Zoe Lofgren, a California Democrat who has been a lead civil liberties reformer on the committee, had said that she would introduce five amendments to the bill. Given that there is bipartisan skepticism of surveillance authority — Republicans have become increasingly opposed to it in the wake of the inspector general report into Foreign Intelligence Surveillance Court abuses surrounding the Carter Page case — the amendments had a reasonable chance of success, opening the possibility that leadership would push forward with an Intelligence version of the bill and ditch the Judiciary legislation.
With Lofgren’s unexpected amendments surfacing, the hearing was canceled at the last minute. If the negotiations looked deadlocked, committee members worried, it upped the chance that the Senate, with the backing of House leaders, would attach the reauthorization to the must-pass coronavirus bill.
“We are trying to work out something and ensure also that the Senate does not push a clean reauthorization. So we needed more time,” said the Judiciary Committee member, citing the looming coronavirus vehicle.
The negotiations over surveillance reform are also complicated by the fact that congressional House leadership can decide which version of a bill receives a vote on the floor. In January 2018, while members of Congress were considering whether to reauthorize a different NSA surveillance, House leadership advanced a hastily written bill passed by the House Intelligence Committee under Rep. Adam Schiff, which was much more favorable to the intelligence community, over a counterpart authored by the Judiciary Committee.
On surveillance issues, House Speaker Nancy Pelosi and Schiff are much more closely aligned than she and Nadler. Schiff is increasingly being viewed in the House as a potential successor to Pelosi as House Speaker. Pelosi herself was the former top Democrat on the Intelligence Committee.
House skeptics of mass surveillance have good reason to fear that funding to combat the impact of coronavirus may be used to pass this legislation. The last time critics of government overreach attempted to reform the USA Freedom Act — which modified the Patriot Act — they were denied a standalone vote, when it was instead attached to a must-pass government spending bill. The promise from leadership at the time was that the extension would be short-term, and skeptics would have an opportunity the next time around for reforms. That’s now in doubt.
“We have to have a separate vote on something as important as this FISA reauthorization,” said Rep. Pramila Jayapal, D-Wash., a member of the Judiciary Committee.
One major question mark hanging over the process this time is what type of changes Trump loyalists — who were highly critical of the FBI’s handling of investigations into Trump associates — may demand. Rep. Jim Jordan and Sen. Rand Paul have both signaled a desire for some type of reform, with Paul tweeting that he “spoke with Trump,” and that the FISA Court — the secret court which approves certain types of surveillance requests from the intelligence community — should be “forbidden from ever spying on or investigating Americans.”