Last week, a majority of senators voted to prevent the federal government from spying on Americans’ internet browsing and search histories without a warrant. But it wasn’t enough, falling just one vote short of the 60 votes needed to pass.
The legislation now lies in the hands of the House, where congressional staffers and advocates are concerned that the Democratic leadership, like Speaker Nancy Pelosi (Calif.) and House Intelligence Committee Chairman Rep. Adam Schiff (Calif.) may block the change.
“Pelosi has been aligned with the intel agencies and Schiff on these matters for forever and we need progressives and civil libertarians, especially ones in leadership, like Jerry Nadler, to make it clear that this is a huge priority for them and they are not going to be outflanked by the Republican Senate on civil liberties protections,” said David Segal of civil liberties grassroots group Demand Progress.
FISA, the 1978 post-Watergate scandal law, is the basis for the federal government’s intelligence gathering and surveillance authorities both in the United States and abroad. Reauthorizing FISA often brings together the rare, but strong, coalition of conservative Republicans and progressive liberals who find agreement on certain privacy and civil liberties areas of the law. The amendment from Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) to the Foreign Intelligence Surveillance Act lost in a razor-thin vote.
There were two notable absences that day — Sens. Bernie Sanders (I-Vt.), who was a co-sponsor on the amendment, and Patty Murray (D-Wa.), who was also in support of the amendment. In other words, if everyone was in town the amendment likely would have passed. But they weren’t, so it didn’t.
“As far as I can tell we lost because there were some people absent,” Wyden told Politico after the vote. On Wednesday, Wyden sent a letter to the acting Director of National Intelligence asking about the scale of the government’s surveillance on citizens’ internet use. “I intend to keep coming back to make sure that any administration can’t spy on [Americans] and violate the Constitution.”
Murray later entered a statement into the Congressional Record saying she supported the amendment but was “necessarily absent” for the vote, and her office said she was flying back to Washington that day. Asked by HuffPost on Wednesday why Democrats came up short on the amendment vote, Murray said, “This is COVID.”
Sanders’ office confirmed he would have voted for it, but declined to comment on his absence. The Vermont senator, a critic of broad government surveillance powers, has not cast a vote since March, including during the recent three-week Senate session.
The Senate’s bill did include a major win for privacy advocates; a bipartisan amendment from Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) that boosted legal protections for those targeted by government surveillance. That amendment’s passage forces the bill back to the House, where negotiations could be reopened once again.
So far the Democratic-controlled leadership has been reluctant to pursue further measures — and at times explicitly hostile toward the proposals. The same amendment is being spearheaded in the House by Reps. Zoe Lofgren (D-Calif.) and conservative House Freedom Caucus member Rep. Warren Davidson (D-Ohio). In March, the House passed its version of the FISA reauthorization that was billed as a compromise between Democrats and Republicans hashed out between the Speaker’s office, and top lawmakers on the House Judiciary and Intelligence committees. It didn’t include accountability measures on the government’s intelligence-gathering powers.
A House staffer who was part of FISA negotiations said Democratic leadership staff specifically stated that “the Senate won’t pass this with search history and web browsing history provisions.” Provisions to add safeguards around the collection of geographic location and internet browsing history were “laughed at incredulously,” the staffer said, noting that even a proposal to gather more information about this kind of collection was shot down. Ironically, Wyden sent a letter this week to the director of intelligence doing just that.
Negotiations have also been predominantly led by Schiff’s staff through the Intelligence Committee, which has been less amenable to these provisions. Historically, FISA has been under the jurisdiction of the Judiciary Committee, where chairman Rep. Jerry Nadler (D-N.Y.) has a longer record supporting these privacy policies. Nadler’s staff has signaled to progressive lawmakers that the chairman is in support of the Wyden-Daines-Lofgren-Davidson amendment and would like to see a vote in the House, however they declined signing a public letter in support of the provision.
That the Senate’s vote came so close to passage in a Republican-controlled chamber could give reluctant House Democrats more reason to support the measure this time around. If the House takes action to amend the law, both chambers would then need to hash out the differences between the two bills in a conference committee.
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.
Rep. Zoe Lofgren (D-Calif.)
What happened in the Senate came as a surprise, leaving lawmakers and their staff frustrated and pointing fingers. Wyden’s office knew the amendment was picking up steam but didn’t think it would come one vote shy of passing. Democratic Senate leadership was in favor of the proposal, but staffers said they didn’t get an accurate count of the vote.
“It was very unexpected,” one congressional aide familiar with the thinking of the absent senators said. “People like Murray and Sanders would have acted differently had a more accurate whip count been conducted.”
Democrats whipped the vote and found the early tally encouraging, but it ultimately fell short of the necessary 60 votes for passage due to opposition from an “unexpected surge of Republican voters,” Senate Minority Whip Dick Durbin (D-Ill.) told HuffPost on Wednesday.
But it wasn’t only Republicans who opposed the effort. While 27 GOP senators ultimately voted against the measure, 10 centrist-minded Democrats joined them in helping to kill it.
Still, the narrow Senate vote is giving lawmakers in support of the provision more hope. Lofgren noted that the Leahy-Lee amendment took Congress “one step closer” to protecting Americans’ civil liberties, and showed the House could take it further.
“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,” Lofgren said in a statement. “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.”
So far opposition to the measure in the Democratic-controlled House has fallen in two camps: those aligned with the intelligence community, which has pushed back on the measure, and a political concern, that a Republican-controlled Senate wouldn’t take up a bill requiring warrants for surveillance.
Outside groups on both sides of the political spectrum, like Demand Progress and conservative, libertarian advocacy group FreedomWorks are lobbying lawmakers to push for the Wyden-Daines amendment in the House.
The Speaker’s office, Schiff and Nadler did not return a request for comment.
“We haven’t heard any reasons that make sense,” a House aide close to those backing the amendment said. “When you have a 59 [in favor] vote with two members not there it gives us reason to believe that this is policy that has bicameral bipartisan support.”
“Why is the Senate the body passing the more progressive bill here?” another House staffer said, calling it “upside-down world.”
Amanda Terkel and Jennifer Bendery contributed reporting.
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