Section 215 of the Patriot Act is scheduled to sunset in mid-March, following a controversial 90-day clean extension included in the budget bill late last year. This dangerous authority has allowed the government to collect an astonishing amount of sensitive data about the daily lives of people in the United States. Under Section 215, the government can monitor data on our phone calls, our locations, our financial transactions — even our medical records.
There’s an urgent need for reform — especially in light of the Trump administration’s history of targeting activists and journalists who oppose its policies.
So what exactly happened?
Just an hour before the legislation was slated to move to markup through the Judiciary Committee, Chairman Jerry Nadler (D–New York) pulled the bill after another senior committee member, Rep. Zoe Lofgren (D–California), and Congressional Progressive Caucus Co-Chair Pramila Jayapal (D–Washington), announced that they would be introducing a handful of narrowly tailored amendments to protect people's privacy rights.
Some blamed Reps. Lofgren and Jayapal for the last-minute blow-up, but that isn’t fair.
First of all, the bill Chairman Nadler was attempting to move, the USA FREEDOM Reauthorization Act of 2020, had not received a single endorsement from the public-interest community. In fact, 20 leading privacy groups, including the ACLU, TechFreedom and Demand Progress, sent a letter to the Judiciary Committee calling for such pro-privacy amendments.
Lofgren and Jayapal’s amendments came at the last minute only because the committee didn’t release the bill text until two days before the scheduled markup — the bare minimum amount of time for consideration under the committee’s own rules.
How did we get here?
The shared jurisdiction over surveillance reform has created a complicated relationship between the House Judiciary and Intelligence Committees.
Rep. Nadler and the Judiciary Committee — which should be championing the Fourth Amendment and other civil liberties — have primary jurisdiction. But Rep. Adam Schiff (D–California) and the Intelligence Committee — known for being more hawkish in their defense of surveillance authorities — also have jurisdiction, and can interfere with a Judiciary bill or just simply produce their own. As a result, Nadler and Schiff worked together to introduce a compromise bill.
The desire to compromise is understandable, but where does it leave Judiciary Committee members who want to do more to rein in massive government surveillance? Should they have the right to debate the merits of their amendments at a public markup, or should a convoluted relationship with the Intelligence Committee and deference to Chairman Schiff silence that debate? Clearly, we deserve and need this debate.
Instead of blaming Reps. Lofgren and Jayapal, we should critique a congressional dynamic that silences public debate over some of the most invasive and secretive spying programs in U.S. history.
Lofgren and Jayapal have not been quiet about their desire for robust reforms. They are both original cosponsors of the Safeguarding Americans’ Private Records Act of 2020 (SAPRA), along with four of their Republican colleagues.
SAPRA includes many of the strong reforms the privacy community has been advocating for, including a warrant requirement for location information, internet browsing and search history; a strong notice provision that protects defendants in criminal cases; and an Inspector General report on the surveillance of First Amendment-protected activities.
Unlike Rep. Nadler’s late bill, SAPRA earned the endorsement of 45 public-interest groups across the political spectrum, including the Center for Democracy and Technology, Color Of Change, FreedomWorks, Free Press Action and Indivisible.
While Nadler, House Speaker Nancy Pelosi and Schiff are seeking compromise on mild reforms, the president and many of his congressional allies are aligning for even stronger safeguards or even moving to let the program expire altogether. This follows reports by a Justice Department watchdog revealing the government had submitted flawed documents to get court approval for surveillance of former Trump campaign aide Carter Page.
Trump’s interest in this issue is self-serving. He seems concerned about the government improperly watching him, not the fact that the government — his government — can watch hundreds of millions of us, focusing spying powers on people of color, dissidents and other marginalized communities.
As we move toward the already extended March 15 deadline, a window for real reform has been forced open. And while calls for even more aggressive reform have emerged, SAPRA is the only bill with both bipartisan support on Capitol Hill and broad support from the privacy-rights community.
Nadler and Schiff should recognize the appetite both within and outside the Beltway for robust privacy protections, and move forward with that strong piece of legislation, not last week’s failed and flawed compromise.