Adam Schiff Sought to Allow for Domestic Surveillance by Selling Out Dreamers During PATRIOT Act Reauthorization

WASHINGTON – Today, a coalition of groups led by Demand Progress Education Fund sent a letter to House and Senate leadership detailing several extraordinary efforts by House intelligence Chairman Adam Schiff (D-CA) and former Senate intelligence Chairman Richard Burr (R-NC) to potentially allow for dragnet internet surveillance under the PATRIOT Act.

As detailed in the letter, during the ongoing debate over whether to reauthorize three expired Foreign Intelligence Surveillance Act (FISA) authorities, House Permanent Select Committee on Intelligence (HPSCI) Chairman Schiff altered a privacy measure related to government surveillance of internet activity to ensure it did not protect certain immigrants, such as recipients of Deferred Action for Childhood Arrivals (DACA). Activists fear that this was part of an effort to create a loophole to bless dragnet surveillance of internet activity, potentially affecting everyone in the United States. In sum, the efforts helped the FBI and NSA avoid disclosing to Congress whether the government is conducting such dragnet surveillance, and to evade a Congressional decision on whether such dragnet internet surveillance is lawful.

The FISA authorities in question, including Section 215 of the USA PATRIOT Act, sunsetted on March 15, 2020, but, as detailed in the letter, this surveillance may be continuing.

The letter, signed by Americans for Prosperity, Demand Progress, Fight for the Future, Free Press Action, FreedomWorks, the Project for Privacy and Surveillance Accountability, and others, is available here (pdf).

The following statement can be attributed to Sean Vitka, senior policy counsel for Demand Progress:

Throughout the 2020 PATRIOT Act reauthorization fight, Schiff has run point for Bill Barr to make sure Congress doesn’t know what the law it is considering means, including whether it allows the FBI and NSA to conduct dragnet surveillance of Americans’ internet activity.

Schiff most recently provided for dragnet internet surveillance by cutting Dreamers and many other immigrants out of a proposed protection, which, in context, appears to have served as a loophole to protect something else: potential undisclosed surveillance of Americans’ internet browsing and search histories.

The consequences of Schiff’s actions are inescapable: In trying to hand the Trump administration Section 215, he repeatedly sabotaged efforts to protect privacy. This is dangerously bad law and dangerously bad oversight.

Ironically, if Schiff has been trying to sneak ratification of such surveillance through Congress, he has unwittingly demonstrated that he knows Congress wouldn’t support it.

Demand Progress Education Fund and several other organizations called for transparency on May 7, but have not received an answer. Several members of Congress have pressed the issue further:

May 20, Senator Wyden — who famously prompted then-Director of National Intelligence Clapper to deny that the government was collecting records on “hundreds of millions of Americans” just months before the Snowden revelations began — questioned whether dragnet surveillance of internet activity would be captured in public transparency reporting. He has not received an answer.
July 21, Senators Leahy and Lee asked critically important, related questions in a letter to Attorney General Barr and Director of National Intelligence Ratcliffe. They have requested an answer by August 7.
July 22, the Senate intelligence committee released questions from Senator Wyden to the nominee for general counsel for the Office of the Director of National Intelligence, including whether Section 215 can be used for the collection of internet activity. Senator Wyden was once again refused an answer.
July 28, Representative Lofgren challenged Attorney General Barr to disclose the legal authority upon which the government is basing domestic deployment of advanced surveillance techniques against protesters. Barr refused to provide a substantive answer.

Although Congress has not endorsed the use of Section 215 for warrantless internet dragnets, several pieces of information detailed in the organizations’ new letter suggest it may have occurred or be occurring nonetheless.

Claims of surveillance authority under Executive Order 12333 also of concern

Moreover, although Congress has not endorsed distinct executive branch claims of authority that would effectively permit domestic mass surveillance under claimed inherent executive power, Chairman Schiff recently included the following rhetorical nod to such claims in the House’s still-pending Intelligence Authorization Act:

although all elements of the intelligence community are authorized under Executive Order 12333 to provide assistance to law enforcement that is “not precluded by applicable law,” activities that may be appropriate in the context of routine criminal investigations may nevertheless be inappropriate in the context of law enforcement response to protest or civil disturbances.

According to Congress.gov, this is the only time the phrase “not precluded by applicable law” has been included in legislation. The phrase comes directly from EO 12333 (Section 2.6, “Assistance to Law Enforcement Authorities”), which enshrines the executive branch’s own interpretation of its authority to conduct surveillance — an interpretation that sees virtually no limit to what records the Trump administration can collect about people in the United States.

A longstanding pattern of surveillance overreach

Government surveillance practices that are based on legal interpretations that stretch — or break — the bounds of the law are not unusual. Over recent decades, the government has repeatedly relied on such flawed, secret legal interpretations to start illegal, domestic mass surveillance programs of unknowable impact. In 1992, during Bill Barr’s first tenure as Attorney General, he personally authorized a DEA surveillance program, the “first known effort to gather records on Americans in bulk” — and did so without legal review. That program operated for over 20 years before the public learned of its existence.

Stellarwind, a notorious program for which the DEA’s bulk collection was a “precursor,” was initiated in 2001 and operated for most of a decade in direct contradiction to FISA and the Constitution. After the public learned about Stellarwind, it too was shuttered — while the government secretly shifted bulk collection of Americans’ phone records under Section 215 of the PATRIOT Act, creating a program that would also be shuttered once exposed by Edward Snowden.

Demand Progress Education Fund and the FreedomWorks Foundation have released numerous materials about Section 215 at www.Section215.org, including a graphic depiction of the government’s unlawful collection of records since 2001.

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