Ever since Edward Snowden revealed the extent to which the U.S. government searches and reads the email of millions of people — and the complicity of telecom and tech companies in the effort — demands that the massive surveillance program be reined in have been intense across party lines.
Yet with the imminent expiration of the legal authority that allows law enforcement to monitor the email of foreigners and many Americans, lawmakers are no closer to overhauling the surveillance process than they were when Snowden, the now-fugitive former National Security Agency contractor, sought asylum in Russia four years ago.
Congress is paralyzed on the contentious national security challenge. Lawmakers appear most likely to throw their hands up and leave in place, for now, the machinery of online surveillance by extending the Dec. 31 expiration date of the existing authority, potentially for years.
Lawmakers have burned endless hours trying to find a fix aimed at easing public concerns that the program has grown evermore Orwellian. The tech industry worries that American government snooping will motivate clients to move their business abroad. Yet they can’t agree on a solution. Civil libertarians on the right and left who demand searches be limited and accompanied by warrants clash with national security hawks who say any such modifications would endanger Americans.
The pressure from law enforcement to keep the program unchanged has been strong.
“We need every tool and every authority we’ve got to keep people safe,” FBI Director Christopher Wray said at a House Judiciary Committee hearing last week. “I would implore the committee and the Congress not to begin rebuilding the wall that existed prior to 9/11.”
The Trump administration has signaled that even if Congress fails to act, an obscure legal ruling could allow it to keep the program in place for at least several months. Those negotiating the issue on Capitol Hill now anticipate Congress will just grant a two-year extension of the status quo. It would be tacked on to the budget bill Congress must pass this month to keep government open. Lawmakers would have little choice but to approve it.
A broad coalition of civil rights, internet freedom and free market advocacy groups is warning lawmakers that punting will have consequences.
“This is an issue that concerns people across party lines, and they want Congress to have this debate,” said Neema Singh Guliani, legislative counsel for the ACLU. “They don’t want something snuck through at the last minute without vetting.”
Even as action to change the program is stalling in Congress, hand-wringing over it isn’t.
Sen. Dianne Feinstein (D-Calif.), whose steadfast advocacy for the surveillance program had long put her at odds with Democratic activists back home, is among those shifting course. As a high-ranking member of the Intelligence Committee, the issue is prominent on Feinstein’s plate as she faces a primary battle.
She is now calling for warrants to be required before law enforcement can access the emails found through one of the most controversial and legally precarious types of searches, in which the NSA scrapes databases for messages of Americans who may have had incidental contact with — or merely mentioned — foreigners on watch lists.
Some experts read the legal authority to search and read emails of Americans, known as Section 702, to go even further. For example, if an American participates in or promotes an event abroad as benign as a climate change protest or an academic conference on international affairs, they could get swept into the surveillance, according to the interpretations.
The government doesn’t always limit its probes to issues of national security. The FBI might use “backdoor searches” in pursuit of a tax-evasion case, for example. The information may not be usable as evidence in a criminal complaint, but it can be used to help the FBI find other information that is.
“This improperly obtained information has been used in court against Americans charged with crimes that have nothing to do with national security,” said Rep. Jackie Speier (D-Hillsborough) at a congressional hearing last week. The FBI won’t say how often that happens, only that it is infrequent. It told the federal Privacy and Civil Liberties Oversight Board in 2014 that it is “extremely unlikely” that an agent pursuing a case unrelated to national security would find their target’s email in the Section 702 database.
The assurance did not impress privacy advocates, who note that law enforcement searches of the 702 databases targeted at Americans have surged. The Office of the Director of National Intelligence revealed in April that more than 30,000 such searches were conducted last year.
“This is not just an abstract legal concern,” said a recent letter to Congress from the advocacy groups coalition, which warned the intelligence report revealed a “strikingly high number” of searches of Americans.
The groups recently found themselves in an unexpected place: praising their longtime nemesis Feinstein, after she joined the push for warrant requirements in a closed session of the Senate Intelligence Committee. Feinstein argued that “Americans have a reasonable expectation of privacy in their communications” and that the 4th Amendment requires the government to show probable cause before reading private email messages, according to a committee report made public.
But most of the committee was not persuaded, and Feinstein ultimately joined her colleagues in voting to advance a plan that reauthorizes the surveillance authority without the new warrant requirement. Other Democrats, including California Sen. Kamala Harris, voted against the bill.
The political odd couple of Sens. Ron Wyden, an Oregon Democrat, and Rand Paul, a Kentucky Republican, have found common ground in their distaste for warrantless searches. In the House, tea party activists have joined liberals in crusading to limit the opaque online intelligence gathering.
The full House has twice voted in recent years to restrict the type of data collection that concerns Feinstein. The House Judiciary Committee included such a restriction in the reauthorization measure it recently advanced. But the House Intelligence Committee left it out.
There are so many competing visions for how to reshape the program that none of them right now appear to have enough support to reach the desk of President Trump, who has signaled little interest in restricting the monitoring.
Trump’s own disputes with intelligence agencies have further complicated the debate.
Politically compromising and possibly illegal communications between Trump associates and Russian nationals intercepted by intelligence officials before Trump took office have moved the president’s allies to demand their own tweaks to Section 702. They would prohibit intelligence agencies from revealing to other government officials — or “unmasking” — the identities of Americans whose communications with foreigners are monitored through the surveillance program.
After the provision was tucked into what had been a bipartisan House Intelligence Committee plan to make some reforms to Section 702, Democrats abandoned the bill. The ranking Democrat on the committee, Rep. Adam Schiff of Burbank, lamented that the provision has imperiled the measure, as Republicans don’t have enough support to pass it through the House on their own.
But they may ultimately have saved Schiff a lot of grief. The bill he was poised to vote for is not popular among activists influential in his district. They complain it does not go far enough in restricting warrantless surveillance.
Schiff is unmoved.
“If we put a warrant requirement on the front end for everything, there are a number of circumstances where we would want law enforcement and intelligence agencies to do searches, but they would lack probable cause,” Schiff said. “Some groups will not be satisfied with anything short of a blanket warrant requirement. I fear that could lead to a reluctance to conduct searches in national security cases, and a stove-piping of information.”