Schiff says Democrats are negotiating to include more privacy protections in key surveillance bill

House Intelligence Committee Chairman Adam Schiff (D-Calif.) says Democrats are making progress in their negotiations over the reauthorization of a key surveillance bill, stating Tuesday that they are working to include more privacy protections. 

Intraparty rifts have emerged in recent weeks as some progressive Democrats and libertarian Republicans push to include additional privacy protection amendments to the Foreign Intelligence Surveillance Act (FISA), while others argue that a clean reauthorization bill has a better chance of making it through the Senate.

Schiff says he and his staff have been working the House Judiciary Committee as well as Reps. Zoe Lofgren (Calif.) and Pramila Jayapal (Wash.) — two Judiciary Democrats who have pushed for more protections — in an effort to get the bill passed by March 15. That’s the deadline to extend three expiring provisions of the USA Freedom Act that touch on roving wiretaps, lone wolf surveillance and a controversial program that allows the U.S. government to request access to phone metadata.

“We’re trying to find as much common ground as we can,” Schiff told The Hill. “We are trying to incorporate even more privacy protections in the hopes that we can get to an agreement in a timely way.”

Schiff said some of Lofgren’s amendments are being considered, including an amicus provision that would add an outside advocate for every FISA case in which an American is targeted as well as make it illegal for the government to collect a U.S. citizen’s metadata.

“We’re looking at expanding the amicus provisions. We are looking at limiting the period of attention to business records, what the business records provision can be used for, making sure that you can’t use the business records to get things you would need a court order for in the criminal context, limiting the use of geolocation data or their usage of location information,” Schiff said.

House Democrats last week were forced to pull their bill in the Judiciary Committee and postpone a markup after Lofgren threatened to force votes on several FISA-related amendments. So far, a new markup has not been announced.

Schiff indicated an understanding has been reached on the issue of metadata but said they are still figuring out other issues like the amicus provisions.

“We’re trying to figure out what’s the capacity of the amicus but also how to weed out those cases that are truly routine that don’t present any novel issues, making sure that that’s a real distinction,” he said.

He said one area of disagreement is whether some provisions could overly constrain the gathering of intelligence. 

“Part of the issue is whether we use the FISA process to impose constraints that are not even present in the criminal law process, and that is a philosophical difference that may be driving some of the division on particular provisions,” he said.

Jayapal, when asked about the state of negotiations, also said there’s more work to be done.

“So far, we are just not there, but we are continuing to talk and hope to see new proposals that address the areas we have raised,” Jayapal said, adding that she too hopes to reauthorize by the deadline.

The debate has also engulfed Republicans, with GOP members clashing as well on whether they should have a clean reauthorization bill or overhaul it to include new protections.

Libertarian Republicans such as Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah) are pushing for sweeping reforms.

Still, most Republicans are also pushing for additional protections, pointing to the use of a wiretap on former Trump campaign aide Carter Page during the 2016 election. 

Federal officials suspected Page of working as an unregistered foreign agent for Russia during the 2016 presidential election, particularly after he made a trip to the Kremlin in July of that year — when questions were already swirling about the campaign’s ties to Moscow.

They say the extensive review of the 2016 FISA process by Justice Department Inspector General Michael Horowitz aids their case. While he did not find evidence to suggest political bias impacted the FBI’s decision to open the counterintelligence probe and concluded that the FBI had an “authorized purpose” for the inquiry, he did find 17 “significant errors or omissions” in the surveillance warrant applications for Page, dating back to 2016.

Trump is also involved. He is expected to meet with key Republican allies in the House and Senate Tuesday afternoon to discuss the matter. It is unclear where Trump will stand on it.

Rep. Chris Stewart (R-Utah), a senior Republican on the House Intelligence Committee, also said he wants to outside advocates as well as a transcript of the court proceedings. If Democrats include such provisions, among a few others, then he believes Republican will also support the bill.

“The question is, will the White House support it? I think we’ll know later on this afternoon,” Stewart added.

Trump has told congressional allies that he will not accept a clean reauthorization bill, as Attorney General William Barr and GOP leadership are said to support — a position that is at odds with what Barr is said to have told senators earlier this month.

As the debate continues, some senators have stated their support for a short-term extension to iron out the rest of the differences.