The government had a few years to sort this out, but as usual, the final call came down to the last minute. Shortly after Section 702 expired at midnight, April 19, the Senate pushed through a two-year reauthorization — one pretty much free of any reforms.
This happened despite there being a large and vocal portion of the Republican party seeking to curb the FBI’s access to these collections because some of their own had been subjected to the sort of abuse that has become synonymous with the FBI’s interaction with this particular surveillance program.
Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.
After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.
For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.
This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.
So, instead of reform, we’re getting an even worse version of what’s already been problematic, especially when the FBI’s involved. As the clock ticked down on this vote (but not really: the FISA court had already granted the Biden administration’s request to keep the program operable as-is until 2025), attempts were made to strip the bill of this dangerous addition and add back in the warrant requirement amendment that had failed in the House.
Sens. Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have struck languagein the House bill that expanded the definition of “electronic communications service provider.” Under the House’s new provision, anyone “who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” The expansion, Wyden has claimed, would force “ordinary Americans and small businesses to conduct secret, warrantless spying.” The Wyden-Hawley amendment failed 34-58, meaning that the next iteration of the FISA surveillance program will be more expansive than before.
Both Sens. Paul and Dick Durbin (D-IL) introduced separate amendments imposing warrant requirements on surveilling Americans. A similar amendment failed in the House on a 212-212 vote. Durbin’s narrower warrant requirement wouldn’t require intelligence agencies to obtain a warrant to query for those communications, though it requires one to access them.
The version headed to the president’s desk is the worst version. The rush to push this version of the bill through possibly gained a little urgency when two unnamed service providers informed the government they would stop complying with FISA orders pretty much immediately if the Senate didn’t renew the program.
One communications provider informed the National Security Agency that it would stop complying on Monday with orders under Section 702 of the Foreign Intelligence Surveillance Act, which enables U.S. intelligence agencies to gather without a warrant the digital communications of foreigners overseas — including when they text or email people inside the United States.
Another provider suggested that it would cease complying at midnight Friday unless the law is reauthorized, according to the people familiar with the matter, who spoke on the condition of anonymity to discuss sensitive negotiations.
We’ll never know how empty these threats might have been or if the Intelligence Community would have even noticed the brief interruption in the flow of communications. Section 702 has been given a two-year extension in the form approved by the Senate, superseding the FISA Court’s blessing of one more year of uninterrupted spying if discussions over renewal blew past the April 19, 2024 deadline.
If you’re a fan of bipartisan efforts — no matter the outcome — well… enjoy your victory, I guess. But there’s nothing about this renewal debacle that can actually be called a win. Unless you’re the FBI, of course. Then it’s all gravy.
Let’s say I told you a harrowing story about a crime. Criminals from halfway around the world used fraudulent means and social engineering to scam a teenager, causing them to effectively destroy their lives (at least in the mind of the teen). The person whose life was destroyed then took an easily accessible gun from their parent and shot and killed themselves. Law enforcement investigated the crime, tracked down the people responsible, extradited them to the US and tried them. Eventually, they were sentenced to many years in prison.
Who would you blame for such a thing?
Apparently, for some people, the answer is Section 230. And it makes no sense at all.
The article is well worth reading, as it not only details the real (and growing) problem of sextortion, but shows how a momentary youthful indiscretion — coaxed by a skillful social engineer — can destroy someone’s life.
The numbers on sextortion are eye-opening:
It was early 2022 when analysts at the National Center for Missing & Exploited Children (NCMEC) noticed a frightening pattern. The US nonprofit has fielded online-exploitation cybertips since 1998, but it had never seen anything like this.
Hundreds of tips began flooding in from across the country, bucking the trend of typical exploitation cases. Usually, older male predators spend months grooming young girls into sending nude photos for their own sexual gratification. But in these new reports, teen boys were being catfished by individuals pretending to be teen girls—and they were sending the nude photos first. The extortion was rapid-fire, sometimes occurring within hours. And it wasn’t sexually motivated; the predators wanted money. The tips were coming from dozens of states, yet the blackmailers were all saying the same thing:
“I’m going to ruin your life.”
“I’m going to make it go viral.”
“Answer me quickly. Time is ticking.”
“I have what I need to destroy your life.”
As the article details, there is something of a pattern in many of these sextortion cases. There are even “training” videos floating around that teach scammers how to effectively social engineer the result: get control over an Instagram or Snapchat account of a young girl and start friending/flirting with teen boys.
After getting flirty enough, send a fake nude and ask for one in return. Then, the scammer goes straight into extortion mode the second the teen boy does the teen boy thing and sends a compromising photo, focused on promising to ruin the boy’s life:
Around midnight, Dani got flirtatious. She told Jordan she liked “playing sexy games.” Then she sent him a naked photo and asked for one in return, a “sexy pic” with his face in it. Jordan walked down the hallway to the bathroom, pulled down his pants and took a selfie in the mirror. He hit send.
In an instant, the flirty teenage girl disappeared.
“I have screenshot all your followers and tags and can send this nudes to everyone and also send your nudes to your family and friends until it goes viral,” Dani wrote. “All you have to do is cooperate with me and I won’t expose you.”
Minutes later: “I got all I need rn to make your life miserable dude.”
As the article notes, this is part of the “playbook” that is used to teach the scammers:
The Yahoo Boys videos provided guidance on how to sound like an American girl (“I’m from Massachusetts. I just saw you on my friend’s suggestion and decided to follow you. I love reading, chilling with my friends and tennis”). They offered suggestions for how to keep the conversation flowing, how to turn it flirtatious and how to coerce the victim into sending a nude photo (“Pic exchange but with conditions”). Those conditions often included instructions that boys hold their genitals while “making a cute face” or take a photo in a mirror, face included.
Once that first nude image is sent, the script says, the game begins. “NOW BLACKMAIL 😀!!” it tells the scammer, advising they start with “hey, I have ur nudes and everything needed to ruin your life” or “hey this is the end of your life I am sending nudes to the world now.” Some of the blackmail scripts Raffile found had been viewed more than half a million times. One, called “Blackmailing format,” was uploaded to YouTube in September 2022 and got thousands of views. It included the same script that was sent to Jordan DeMay—down to the typos.
The article mostly focuses on the tragic case of one teen, DeMay, who shot himself very soon after getting hit with this scam. The article notes, just in passing, that DeMay had access to his father’s gun. Yet, somehow, guns and easy access to them are never mentioned as anything to be concerned about, even as the only two suicides mentioned in the article both involve teen boys who seemed to have unsupervised access to guns with which to shoot themselves.
Apparently, this is all the fault of Section 230 instead.
Hell, even as the article describes how this was a criminal case, and (somewhat amazingly!) the FBI tracked down the actual scammers in Nigeria, had them extradited to Michigan, and even got them to plead guilty to the crime (along with a mandatory minimum of 15 years in prison). Apparently, this is still… an internet problem?
The reality is that this is a criminal problem, and it’s appropriate to treat it as such, where law enforcement has to deal with it (as they did in this case).
It seems like there are many things to blame here: the criminals themselves (who are going to prison for many years), the easy access to guns, even the failure to teach kids to be careful with who they’re talking to or what to do if they got into trouble online. But, no, the article seems to think this is all Section 230’s fault.
DeMay’s family appears to have been suckered by a lawyer into suing Meta (the messages to him came via Instagram):
In January, Jordan’s parents filed a wrongful death lawsuit in a California state court accusing Meta of enabling and facilitating the crime. That month, John DeMay flew to Washington to attend the congressional hearing with social media executives. He sat in the gallery holding a picture of Jordan smiling in his red football jersey.
The DeMay case has been combined with more than 100 others in a group lawsuit in Los Angeles that alleges social media companies have harmed children by designing addictive products. The cases involve content sent to vulnerable teens about eating disorders, suicide and dangerous challenges leading to accidental deaths, as well as sextortion.
“The way these products are designed is what gives rise to these opportunistic murderers,” says Matthew Bergman, founder of the Seattle-based Social Media Victims Law Center, who’s representing Jordan’s parents. “They are able to exploit adolescent psychology, and they leverage Meta’s technology to do so.”
Except all of that is nonsense. Yes, sextortion is problematic, but what the fuck in the “design” of Instagram aids it? It’s a communication tool, like any other. In the past, people used phones and the mail service for extortion, and no one sued AT&T or the postal service because of it. It’s utter nonsense.
But Bloomberg runs with it and implies that Section 230 is somehow getting in the way here:
The lawsuits face a significant hurdle: overcoming Section 230 of the Communications Decency Act. This liability shield has long protected social media platforms from being held accountable for content posted on their sites by third parties. If Bergman’s product liability argument fails, Instagram won’t be held responsible for what the Ogoshi brothers said to Jordan DeMay.
Regardless of the legal outcome, Jordan’s parents want Meta to face the court of public opinion. “This isn’t my story, it’s his,” John DeMay says. “But unfortunately, we are the chosen ones to tell it. And I am going to keep telling it. When Mark Zuckerberg lays on his pillow at night, I guarantee he knows Jordan DeMay’s name. And if he doesn’t yet, he’s gonna.”
So here’s a kind of important question: how would this story have played out any differently in the absence of Section 230? What different thing would Mark Zuckerberg do? I mean, it’s possible that Facebook/Instagram wouldn’t really exist at all without such protections, but assuming they do, what legal liability would be on the platforms for this kind of thing happening?
The answer is nothing. For there to be any liability under the First Amendment, there would have to be evidence that Meta employees knew of the specific sextortion attempt against DeMay and did nothing to stop it. But that’s ridiculous.
Instagram has 2 billion users. What are the people bringing the lawsuit expecting Meta to do? To hire people to read every direct message going back and forth among users, spotting the ones that are sextortion, and magically stepping in to stop them? That’s not just silly, it’s impossible and ridiculously intrusive. Do you want Meta employees reading all your DMs?
Even more to the point, Section 230 is what allows Meta to experiment with better solutions to this kind of thing. For example, Meta has recently announced new tools to help fight sextortion by using nudity detectors to try to prevent kids from sending naked photos of themselves.
Developing such a tool and providing such help would be riskier without Section 230, as it would be an “admission” that people use their tools to send nudes. But here, the company can experiment with providing better tools because of 230. The focus on blaming Section 230 is so incredibly misplaced that it’s embarrassing.
The criminals are actually responsible for the sextortion scam and the end results, and possibly whoever made it so damn easy for the kid to get his father’s gun in the middle of the night to shoot himself. The “problem” here is not Section 230, and removing Section 230 wouldn’t change a damn thing. This lawsuit is nonsense, and sure, maybe it makes the family feel better to sue Meta, but just because a crime happened on Instagram, doesn’t magically make it Instagram’s fault.
And, for good reason. As noted above, this was always a law enforcement situation. We shouldn’t ever want to turn private companies into law enforcement. Because that would be an extremely dangerous result. Let Meta provide its communications tools. Let law enforcement investigate crimes and bring people to justice (as happened here). Maybe we should focus on better educating our kids to be aware of threats like sextortion and how to respond to it if they happen to make a mistake and get caught up in it.
There’s lots of blame to go around here, but none of it belongs on Section 230.
For a little while, it looked as though Section 702 surveillance might finally be curtailed, if not substantially reformed. Lots of House Republicans were irritated that some of Trump’s inner circle had been (inappropriately) targeted by FBI investigators taking advantage of the agency’s backdoor access to US persons’ communications collected by a foreign-facing collection program.
This was on top of the years of abuse the FBI has committed and continues to commit in terms of its warrantless access to communications collected by the NSA. Despite the FBI’s continuous promises to do better (and its continual failure to achieve that goal), far too many House members were willing to vote for a clean reauthorization of Section 702. And far too many — especially on the Democratic side of the aisle — were willing to vote down a proposed warrant requirements, something privacy advocates like Senator Ron Wyden have been trying to get written into law for years.
The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.
This vastly expands the government’s collection authority under Section 702, moving on from the normal definition of “service providers” to cover places where communications are at rest, rather than being transmitted or received. Here’s how Marc Zwillinger, Steve Lane, and Jacob Sommer break down the wording of the Turner-Himes amendment:
[It] (1) drops the qualifier “communication” from the class of covered “service providers;” (2) makes access to communications-carrying equipment enough to establish eligibility; and (3) adds “custodian” to the list of individuals who can be forced to provide assistance. But unlike the FRRA, it then enumerates a list of business types that cannot be considered ECSPs, including public accommodations, dwellings, restaurants, and community facilities.
This amendment was written in response to a FISA court ruling that told the government’s surveillance apparatus that the law — as it currently stood — did not cover the target of the proposed surveillance. It fell outside the statutory definition of “electronic communication service provider.” The FISA court suggested that if the ODNI (Office of the Direction of National Intelligence) and DOJ didn’t like the wording, they were welcome to take it up with Congress.
That’s exactly what they did. And now, two House reps have managed to attach an amendment that broadly expands the definition of “electronic communication service provider” to cover just about anything that might be a source where electronic communications can be collected.
Here’s how Senator Wyden described the amendment’s intended effects in his statement [PDF] during Senate discussion of the pending reauthorization:
Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.
After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.
For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.
This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.
Of course, those pushing the amendment claim nothing bad will happen if they give the NSA (and, by extension, the FBI) more collection power and more sources to collect from. Rep. Himes has responded to concerns by treating all criticism of the amendment as overblown.
Wyden’s statement points out the flaw of this argument: mainly that it assumes, with zero facts in evidence, that this will be the one expanded surveillance power that won’t be abused.
Supporters also claim that the provision has a narrow purpose and that the government does not intend to start tapping into every American’s phone line or wifi. But that’s not how this provision is written. And I would say respectfully that anyone who votes to give the government vast powers under the premise that intelligence agencies won’t actually use it is being shockingly naive.
It’s not just naïve. It’s asinine. Years of abuse by the FBI clearly demonstrates the FBI will abuse access to these new “service providers.” Years of surveillance power abuse by the NSA — an agency headed by officials with “collect it all” attitudes and willingness to continuously test the outer limits of the Constitution — makes the same statement: if you give the IC this power, it will be abused.
And the reps behind the amendment know it. As Wyden pointed out, the fact that carve-outs for coffee shops, hotels, restaurants, and community facilities were written into the amendment following the first signs of opposition make it clear even the amendment’s authors knew the proposed changes would be a vehicle for abuse, hence the quick move to exempt certain entities from the broad definitions they’re seeking to have written into law.
What started as an effort that may have actually limited the FBI’s abuses by forcing it to obtain warrants has devolved into a proposed rewriting of the authority to vastly expand the government’s surveillance opportunities. If we can’t get a warrant requirement approved, the very least the Senate can do is ensure this amendment does not become law.
The fourth time (yes, the fourth) was the charm for House Republicans when the lower chamber of Congress on a bipartisan basis voted to renew a controversial spying law, not without plenty of hiccups along the way.
And there you have it. A clean reauthorization is now headed to the Senate. All the House Republicans who converted their Deep State conspiracy theories into a demand for a warrant requirement found themselves matched evenly with Democrats who refused to give the Republicans what they wanted, even if it would have resulted in better protections for all Americans, not just the Americans House Speaker Mike Johnson thought were worth protecting (i.e., just congressional reps).
A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.
“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”
But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.
So, there will be no warrant requirement contained in the House reauthorization. Instead, we’re stuck with what will likely be a clean re-up of Section 702 surveillance — something that includes FBI access to US persons’ communications that it has never not abused since it was granted access to this collection.
Members of the Senate have their own warrant requirement amendment to pitch, but it was thought the House — where Trump acolytes are suddenly enamored with the possibility of punishing the FBI for its excesses — might be the first place for a Section 702 warrant requirement to be voted into existence. Sadly, it was the other side of the aisle that ruined this, apparently unwilling to give House Republicans a win that would have resulted in better protections for their constituents.
The clock continues to tick down to the April 19 postponement. But, given what’s been seen here, a majority of representatives seem to feel maintaining the status quo is preferable to demanding the FBI respect the Constitution when accessing NSA collections. There’s a small chance the Senate (led by Ron Wyden’s endless pursuit of surveillance reform) can institute a warrant requirement. But, for the most part, the partisan infighting has led to nothing more than a blanket extension of the same stuff that has been problematic for years. And every year this issue goes ignored solidifies the FBI’s casual abuse of constitutional rights.
It took the FBI carelessly, stupidly, and unlawfully targeting members of Trump’s inner circle to make Section 702 program reform a thing that might actually happen.
It’s kind of astounding, considering the Snowden leaks provided a much better argument for reform, as well as the FBI’s long-documented history of abusing its access to Section 702 collections to engage in warrantless surveillance of American citizens.
But it wasn’t until a former Trump advisor and Trump acolyte in the House got caught up in the FBI’s dragnet that things started to look a little grim for supporters of clean reauthorization. Years of abuse was considered fine right up until it affected people who mattered… at least to themselves and the former president they idolize.
There’s been plenty of opposition to unchecked surveillance over the years, but it has almost always been led by Senator Ron Wyden. Wyden’s efforts have been shot down by his own colleagues, who have been unwilling to challenge the Intelligence Community’s claims nothing about any surveillance authority should ever be changed because terrorism.
More than two decades after the 9/11 attacks, this attitude remains in full force. But it has been made worse by hyper-partisanship — something actively encouraged by Donald Trump during his term in office and made worse by Republicans who both want to ingratiate themselves with a former president as well as show their voting base they’re doing something to address Deep State conspiracies they’ve been stoking since Trump first took office.
The thing is this could have led to meaningful reforms, even if the motivations were highly suspect. As for the FBI, it offered only two arguments in defense of its warrantless access to US persons’ communications: (1) TERRORISM!, and (2) [hilariously] pretty much all of our searches of Section 702 collections are unlawful if you bring the Fourth Amendment into it.
The vote on extending Section 702 has been pushed back several times. Reform efforts (again led by Wyden) have been mounted. The rep heading the House Intelligence Community also pushed his own set of “reforms,” but they did nothing more than provide protections to congressional members who might find themselves subjected to the FBI’s continuous surveillance abuses.
The vote in House on proposed reforms and Section 702 reauthorization has given the FBI a free pass until the next renewal. As Elizabeth Nolan Brown notes for Reason, Democrats unwilling to give Republicans what they wanted (even if it meant better protections for their constituents) overwhelmingly voted in favor of an unaltered continuation of everything that’s been abused for years.
A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.
“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”
But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.
There’s the partisan split. That’s how you end up with a tie, which means the unaltered Section 702 moves on to the Senate for a vote. Had just a few Democrats been willing to place the concerns of Americans ahead of their own antipathy towards those on the other side of aisle, a warrant requirement might have been put in place on the House side of things.
But that didn’t happen. And part of the reason that didn’t happen is because the top-ranking Democrat on the House Intelligence Committee decided to swing votes by lying to his fellow representatives. Dell Cameron brings the news and the screenshots:
Cameron’s post for Bluesky says:
The head Dem on House Intel was caught by Politico reporter blasting disinformation out to colleagues ahead of a vote on the 702 wiretap program
Following that were screenshots of tweets (or whatever the fuck) made by Politico reporter Jordain Carney about the last-minute lobbying performed by Congressman Jim Himes, a Democrat representing Connecticut.
If you can’t see/read the screenshots, here’s what they say:
Peak into some of the behind-the-scenes lobbying on 702 ahead of today’s vote:
Himes sent a text to colleagues, explaining that he opposes warrant requirement, calling it an “extreme amendment that goes far beyond” what PCLOB [Privacy and Civil Liberties Oversight Board] recommends, per message I saw,
But…
Sharon Bradford Franklin (chair of the PCLOB, speaking in individual capacity) told me this morning: “I strongly disagree with the characterization” of the amendment “as going far beyond what the PCLOB recommends”
Called it “consistent” and in many ways “similar” to majority rec
Added that PCLOB report notes it would support Congress going further and said the amendment includes similar exceptions to what PCLOB recommended
In other words, Rep. Himes didn’t like what he was hearing from the PCLOB (if, indeed, he bothered to check its views at all) and didn’t want the Republicans to get a win, so he actively misrepresented the PCLOB’s views to swing votes in favor of clean reauthorization. We’ll never know how many Democrats he swung to his side by doing this but the voting tally suggests a lot of Democrats either bought into Himes’ bullshit or simply couldn’t bear giving House Republicans a win… even if that win would have respected Americans’ rights and (as a bonus) shut down the pro-surveillance efforts of the Republican leader of the House Intelligence Committee.
This now moves on to the Senate, which has its own suggestions for reform. Fortunately, Ron Wyden is a senator, which means there’s still a chance the FBI will be subject to warrant requirements if it wants to search NSA data for US persons’ communications. Here’s the latest from Wyden, who has spent his entire career pushing back against surveillance power expansions:
U.S. Senator Ron Wyden, D-Ore., vowed to oppose legislation passed by the House of Representatives that would reauthorize Section 702 of FISA and expand warrantless surveillance, in a statement today.
“The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Wyden said. “It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. I will do everything in my power to stop this bill.”
Section 702 remains, at least partially, on the ropes. The FBI’s abuses might finally see themselves curtailed by codification, something that would be far more permanent than its own voluntary oversight efforts or the FISA court’s periodic reprimands. No matter how disingenuous the effort being made by many Republicans is, the end result would be better protections for all Americans — something that can’t be easily undone no matter who’s sitting the White House in 2025.
The FBI has resumed some of its efforts to share information with some American tech companies about foreign propagandists using their platforms after it ceased contact for more than half a year, multiple people familiar with the matter told NBC News.
The program, established during the Trump administration, briefed tech giants like Microsoft, Google and Meta when the U.S. intelligence community found evidence of covert influence operations using their products to mislead Americans. It was put on hold this summer in the wake of a lawsuit that accused the U.S. government of improperly pressuring tech companies about how to moderate their sitesand an aggressive inquisition from the House Judiciary Committee and its chair, Jim Jordan, R-Ohio.
This is important for a few reasons. First, many people have widely misunderstood why and how the FBI was in touch with the social media companies throughout this discussion. I tend to agree with many people that contact between private companies and the FBI should be minimal and companies should always be wary of what the FBI wants.
But, there are times that it does make sense for the FBI to be in communication, which the oral arguments made clear.
Justice Amy Coney Barrett highlighted that there clearly are times when the FBI should be in contact with the platforms. Even the lawyer for the states, Louisiana’s Solicitor General Benjamin Aguiñaga, admitted that there were clearly cases where it would make sense for the FBI to send information to platforms, such as when there is a danger to someone, or a threat.
JUSTICE BARRETT: So the FBI can’t make –do you know how often the FBI makes those kinds of calls?
MR. AGUINAGA: And that’s why –and that’s why I have backup answer, Your Honor, which is, if you think there needs to be more, the FBI absolutely can identify certain troubling situations like that for the platforms and let the platforms take action.
The FBI told the House Judiciary Committee that, since the court rulings, the bureau had discovered foreign influence campaigns on social media platforms but in some cases did not inform the companies about them because they were hamstrung by the new legal oversight, according to a congressional official.
Again, it’s true that how close the FBI is with companies matters. We don’t want another scenario like with AT&T and federal intelligence apparatus, where they literally had employees embedded with each other. But, straight-up information sharing on foreign threats certainly seems reasonable.
And this is why it would still be nice if the Supreme Court drew the line in the proper place, distinguishing general information sharing about such things, and any sort of coerced pressure or threats directed at the social media companies regarding their policies or decision-making.
I had certainly been curious to see how those who had been triumphantly trumpeting this case as proof of a grand “censorship industrial complex” would respond to how the hearing went. Most seem to be in varying states of denial. Many seem angry, insisting that the Justices just didn’t understand or didn’t look at the details (when the reality appears to be the opposite).
Some, instead, focused on the very problematic comments from Justice Ketanji Brown Jackson that seemed to suggest she was leaning way too far in the other direction. These comments suggested that maybe the government should have more leeway in pressuring private companies to take down speech. As we called out in our original writeup, this line of questioning did seem extremely problematic. However, there is a more generous interpretation: that she was noting that the determining factor is if it can pass strict scrutiny or not, and the argument from the states didn’t even leave room for that possibility. That is, it wasn’t necessarily support for coercive behavior, but rather pointing out that there could, in theory, be cases where coercive power is allowed if it passes strict scrutiny (I have problems with that theory, but if she’s just pointing out that Missouri’s test doesn’t leave that open, it’s a fair point).
But Skorup’s NRO piece is just bizarrely disconnected from reality. It comes across as what one would write if you had not actually read any of the briefings in the case, nor listened to the oral arguments, but rather simply imagined what might have happened based on a very distorted, and not very factual, understanding of the case.
First of all, the framing is simply incorrect. It starts out like this:
In oral arguments on Monday, the U.S. Department of Justice urged the Supreme Court to let government officials, including federal law-enforcement agencies, tell social-media company officials, in secret, what content to delete.
Except… that’s not even close to true. The DOJ’s position was actually that they had not told social media companies what to delete. They expressly admitted that if they had done that, it would be a First Amendment violation. Like, literally, here is what the Principal Deputy Solicitor General said in the oral arguments:
…we don’t say that the government can coerce private speakers. That is prohibited by the First Amendment.
The DOJ explicitly admitted that if it was trying to coerce private speakers, that would violate the First Amendment. They repeatedly pointed out that there was no actual evidence presented in the case that it had coerced anyone. So it’s both bizarre, and wrong, to claim that the DOJ “urged the Supreme Court to let government officials… tell social-media company officials, in secret, what content to delete.”
No one made that argument at all. Skorup and the National Review are lying to their readers.
And it gets worse.
The plaintiffs presented damning evidence, including internal government emails and testimony from government officials. They documented federal officials’ immense pressure on social-media companies, including profane emails and vague threats from White House officials to Facebook officials to remove vaccine “disinformation,” as well as messages from the FBI to several social-media companies with spreadsheets of accounts and content that the agency wanted removed. The FBI followed up on its requests at quarterly meetings with companies, keeping internal notes of which companies were complying with FBI demands. Perhaps the messages were innocent — we may never know because the FBI used encrypted communications and has not revealed their contents.
This is not what happened at all. Again, we’ve gone through pages and pages of evidence presented in this case and, as we’ve highlighted over and over again, there was no “damning evidence”. There were situations where the plaintiffs in the case took things out of context, or completely misrepresented the context.
The whole thing about the FBI sending “spreadsheets of accounts and content that the agency wanted removed,” is something that did not happen in the way presented. That would be clear if one had looked at the actual evidence or actually listened to the oral arguments. Fletcher explained the spreadsheet situation during the arguments:
… for example, when the FBI would send communications to the platforms saying, for your information, it has come to our attention that the following URLs or email addresses or other selectors are being used by maligned foreign actors like Russian intelligence operatives to spread disinformation on your platforms, do with it what you will.
Indeed, as Yoel Roth later described in writing about this, this kind of information sharing was simply as presented: “we’ve found these things, do what you want with it if you find it useful.” It was not seen as even remotely coercive nor a list of “what accounts to remove.” Efforts at dealing with large-scale foreign intelligence operatives frequently meant tracking the content to identify the source of a foreign influence campaign, not just taking content down upon receipt.
In several others, the FBI passes lists of accounts that they “believe are violating your terms of service” or “may be subject any actions [sic] deemed appropriate by Twitter.” The FBI fastidiously—and I would argue conspicuously, in the evidence presented—avoids both assertions that they’ve found platform policy violations, and requests that Twitter do anything other than assess the reported content under the platform’s applicable policies.
Receiving and acting on external reports is a core function of platform content moderation teams, and the essential nature of this work is an independent evaluation of reported content under the platform’s own policies. The fact, cited in Missouri v. Biden, that platforms only acted on approximately half of reports from the FBI shows clearly that the standards platforms applied were not wholly, or even mostly, the government’s.
Finally, it does not withstand factual scrutiny that platforms were so petrified of adverse consequences from the FBI that they uncritically accepted and acted on information sent to them by the government. The Twitter Files themselves document clearly at least two instances in which, presented with low-quality information or questionable demands, Twitter pushed back on the FBI’s requests. In one case, the FBI passes on a request—seemingly from the NSA—that Twitter “revis[e] its terms of service” to allow an open-source intelligence vendor to collect data from the Twitter APIs to inform the NSA’s activities. This request is arguably as close to jawboning as any interaction between Twitter and the FBI gets; yet, in response, I summarily dismissed not only the request for a meeting to discuss the topic, but the entire premise of the request, writing, “The best path for NSA, or any part of government, to request information about Twitter users or their content is in accordance with valid legal process.” The question was not raised again.
If you look at the actual emails from the FBI (which have been released), you see that Roth is exactly correct. They are clear that this is just information sharing, and they all involve accounts that were claimed to be part of a Russian disinformation campaign. The FBI is explicit: “For your review and action as deemed appropriate.” Not “take it down.” Just “here’s what we found, do what you want with it.”
And the report in which those emails are released, from Jim Jordan’s committee in the House, admits that “Meta did not immediately take noticeable action against these accounts.” This again highlights that nothing in these communications were deemed by either side as demands for removals.
Other emails from the FBI, including ones to Twitter, also follow this pattern. In one highlighted exchange in the report, the FBI emailed Roth a list of potential Russian disinformation spreaders, and Roth called out that some appeared to not be Russian at all, but rather American and Canadian. This is not what you’d expect him to do if he was being told to just pull those down and feared retaliation if he pushed back. Roth asked for more context, and the FBI responded that it didn’t have anything else to provide and noted, again, that it was totally up to Twitter how to handle the information:
During the oral arguments, the Justices seemed reasonably confused as to how this bit of information sharing was problematic. Justice Barrett seemed surprised when asking Louisiana’s Solicitor General why the FBI shouldn’t be able to share such information. This led him to admit that yes, he thinks in retrospect that the FBI “absolutely can identify certain troubling situations like that for the platforms and let the platforms take action.”
You would think that an article talking about the oral arguments would… maybe point that out? Instead, it insists that the FBI’s actions must have been censorial, when even the states admitted to the Justices that maybe it wasn’t that bad.
Another example of a misrepresentation of the record, that we highlighted, was where the plaintiffs took an email from Francis Collins to Anthony Fauci, in which Collins suggested that they needed to address some misleading information about COVID by responding to it. Collins said “there needs to be a quick and devastating published take down of its premises.”
The word “published” was removed in the hands of the states and the district court. It was said that Collins demanded “there needs to be a… take down of its premises,” which the court said was proof that Collins demanded the information be taken down. That was false.
Skorup and the National Review engage in similarly misleading selective quoting.
Take this paragraph:
However, there are clear signs many U.S. government officials want to censor topics far beyond just vaccines, and that they view American minds as a theater over which their legal authority extends. For instance, the director of a federal cybersecurity and infrastructure agency noted at a 2021 event that the agency was expanding beyond protecting dams and electric substations from internet hackers to exerting “rumor control” during elections, saying, “We are in the business of critical infrastructure. . . . And the most critical infrastructure is our cognitive infrastructure.” A White House national climate adviser stated at an Axios event: “We need the tech companies to really jump in” and remove green energy “disinformation.”
Notice how carefully the quote marks are used here to imply that government officials were pushing for websites to “remove” content, but that’s not actually stated in any of the actual quotes. If you look at the actual event, the “national climate advisor” (who has no authority to regulate or punish companies in the first place) was saying that disinformation about climate change is a real threat to the planet, and that she’s hoping that tech companies don’t let it spread as far. She wasn’t talking to the companies. She wasn’t threatening the companies. This is classic bully pulpit kind of talk that is allowed on the “persuasion” side of the line.
As for the quote above it, again, when put back into context, it shows the exact opposite of what Skorup falsely implies. It’s CISA director Jen Easterly who did talk about “cognitive infrastructure,” but in context, she talks about “resiliency” to disinformation, including making sure people have more access to accurate info. Literally nothing in the discussion suggests content should be removed:
“One could argue we’re in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure, so building that resilience to misinformation and disinformation, I think, is incredibly important,” Easterly said.
“We are going to work with our partners in the private sector and throughout the rest of the government and at the department to continue to ensure that the American people have the facts that they need to help protect our critical infrastructure,” she added.
As for the whole “rumor control” effort by CISA, Skorup doesn’t seem to realize that it was set up in 2020 by the Trump administration. It was about providing more info (more speech) not removing speech. Everything about what is presented in the article is inherently misleading.
Each time Skorup presents some of the evidence, he uses selective quotation to hide what was actually being talked about:
Department of Homeland Security documents obtained and released by U.S. Senator Chuck Grassley show a 2022 plan to “operationaliz[e] public-private partnerships between DHS and Twitter” regarding content takedowns. Further, red flags are present at the social-media companies: Many hire former federal officials to their “trust and safety” teams, and others have created online portals to fast-track government agencies’ content-takedown requests.
Again, it helps to look at the source documents here to understand what’s actually being discussed. The out of context line about “operationalizing public private partnerships” was entirely about the (yes, stupidly named and poorly explained) Disinformation Governance Board, which never actually did anything before being disbanded. And from the notes, the “operationalize” bit is clearly about figuring out what information (again, more speech!) Twitter would find useful in dealing with mis- and disinformation, not “what content should be taken down.” Furthermore, these were prep notes for a meeting a DHS official was having with Twitter, with no evidence that Twitter ever seriously considered working with DHS in this manner.
Facts matter. Skorup is misrepresenting them almost whole cloth.
But, what’s really perplexing is that Skorup’s version of what happened at the Supreme Court does not come even remotely close to what actually happened at the Supreme Court. Justices from Amy Coney Barrett to Sonia Sotomayor to Brett Kavanaugh to Elena Kagan all called out these kinds of errors in the states’ arguments.
Skorup mentions none of that.
Instead, he falsely claims that the DOJ “urged the Supreme Court to let government officials, including federal law-enforcement agencies, tell social-media company officials, in secret, what content to delete.” That simply did not happen. They repeatedly agreed that if that had happened it would be a problem, but focused much of the discussion on how that had not actually happened.
Honestly, reading Skorup’s piece, it felt as if it had been written prior to the oral arguments and without reading any of the relevant briefs in the case. And, maybe that’s because it had been. In researching this piece, I came across a surprisingly similar piece also written by Skorup that made many of the same claims… over a year ago. Before the case had been even decided by the district or appeals courts. Before the problems with all the evidence were widely documented. It’s almost as if he took that piece and rewrote it for the National Review, without bothering to check on anything.
This seems like a form of journalistic malpractice that you’d think the National Review would not support. But, alas, these days the National Review apparently doesn’t much care about facts or accuracy so long as a piece agrees with the narrative it wishes to push.
US Private Vaults is a private company, in multiple senses of the word. Despite the use of the acronym “US,” US Private Vaults is not a government entity. The service it offers aligns roughly with storage services federally insured banks offer: a secure place to hold valuables that is only accessible by those who have keys to the safety deposit boxes.
But there’s a crucial difference: US Private Vaults does not collect or store identifying information about its customers. The company also does not keep a set of duplicate keys. Its service is pretty much end-to-end encryption, but for physical property. The company can’t provide law enforcement with identifying info, nor can it unlock anyone’s storage boxes when presented with a warrant.
Those privacy features led the government to assume anyone seeking to use this service must be a criminal. That was pretty much its argument when it sought a warrant to search a US Private Vaults location in Beverly Hills, California.
However, the FBI told the magistrate that it would not simply take everything it found when it raided this location. Instead, it told a judge it would inventory the contents of any boxes it was able to open and contact box owners to return their property if it could find any identifying information. That’s not what actually happened. The FBI broke its own sworn promise to the magistrate and proceeded to take possession of pretty much every bit of property it found, apparently hoping to use civil forfeiture to retain possession forever.
The FBI was sued multiple times by US Private Vaults customers. In at least one case, a court has ordered the FBI to return the property it specifically told a magistrate judge it wasn’t actually going to take.
Another lawsuit against the FBI is moving forward again, thanks to a ruling by a California federal court. In this case, the FBI took $2,000 in cash from a box owned by Jeni Pearsons. The FBI can’t argue there was no cash in the box. As this XTwitter thread by Rob Johnson explains, Pearsons documented the contents of her vault box every time she visited. Her most recent photo of the box’s contents — which clearly shows the $2,000 in cash — occurred just a month before the February 2021 raid.
When confronted with this fact, the FBI refused to offer any argument in defense of its thievery. Instead, it argued it was above the law. The FBI invoked sovereign immunity — which is normally the sort of thing invoked by the top level of governments in international lawsuits. This move by the FBI suggests it had no real argument to support its taking of Pearsons’ money, only the small hope the court could be persuaded to pretend the FBI’s theft was an executive action beyond the reach of the US judicial system.
The minute order [PDF] says the invocation of sovereign immunity won’t work here. The lawsuit will move forward.
It first notes the facts of the case, which show the FBI simply made $2,000 vanish without explanation.
Plaintiffs stored numerous valuable items in a safe deposit box at USPV, including approximately $20,000 in silver and $2,000 in cash. On March 22, 2021, pursuant to a warrant, the FBI searched USPV’s business premises and seized various property, including Plaintiffs’ safe deposit box. The FBI later returned Plaintiffs’ silver but not their cash, which had seemingly “disappeared.”
It then goes on to point out the FBI’s apparently deliberate misleading of the magistrate approving the USPV search warrant.
Notwithstanding her representations to the magistrate, [FBI agent Lynne] Zellhart spearheaded “a separate plan — concealed from the magistrate who approved the warrant — to administratively forfeit all boxes containing property worth at least $5,000 (the FBI’s minimum threshold for profitability), and to conduct Investigatory searches of the boxes for evidence to support the forfeitures.” Therefore, “[i]instead of honoring its promises to safeguard the safe-deposit boxes and return the contents to the rightful owners, the government instead … [broke] into the safe-deposit boxes to look for property to forfeit and search[ed] for evidence to support the forfeitures.” As part of that plan, Zellhart created “specialized one-time search procedures” that included the use of drug sniffing dogs, documenting “cash observations,” and sending copies of paperwork to the asset forfeiture unit.
It was nothing but a cash grab. The FBI told a judge one thing and then did something else entirely, solely for the purpose of enriching the FBI itself. The fact that almost no criminal charges have been filed clearly indicates this was never about stopping crime or criminals.
The court denied the Bivens claim, something that’s unsurprising since it’s almost impossible to hold federal agents accountable under this particular Supreme Court precedent.
But that doesn’t mean the FBI is off the hook. Other actionable claims were made and the bizarre invocation of sovereign immunity isn’t going to allow the FBI to escape this lawsuit. Taking cash without bothering to explain exactly why the government was right to do so is unacceptable. That claim can move forward.
Here, Plaintiffs allege that the FBI seized their property and never returned it. Moreover, Plaintiffs allege that the FBI has no apparent need for the property. For these reasons, Plaintiffs have pleaded a plausible Takings Clause claim, and the court DENIES the Motion with respect to this claim.
The Federal Tort Claims Act (FTCA) move ahead as well, thanks to the FBI’s unwillingness to abide by the promises it made to the magistrate judge when securing the warrant.
Here, the parties do not meaningfully dispute that Plaintiffs’ claims involve goods detained by law enforcement. Instead, the parties disagree regarding whether Plaintiffs have alleged that the property was seized solely for the purpose of forfeiture. Plaintiffs argue that they have made exactly this allegation, since they alleged the FBI seized only the nests for law enforcement purposes, then subsequently searched the individual boxes for contents sufficiently valuable to be forfeitable. The Government contends that Plaintiffs have alleged that the FBI seized the property for both Investigatory and forfeiture purposes.
The Government’s argument is unavailing. Plaintiffs specifically allege that the FBI’s warrant application “sought to seize ‘the nest of boxes themselves, not their contents.'” Moreover, Plaintiffs allege that the FBI planned to “administratively forfeit all boxes containing property worth at least $5,000 (the FBI’s minimum threshold for profitability), and to conduct Investigatory searches of the boxes to support the forfeitures.” These statements allege that Plaintiffs’ property was not seized for any other purpose than “for the purpose of forfeiture.”
The Government makes no additional arguments for dismissal of the FTCA claims. Accordingly, the Court DENIES the Motion with respect to those claims.
The lawsuit moves forward. The FBI will now be forced to deal with discovery. Considering it has already been shown to be a liar, the FBI may try to settle this suit, rather than hand over information that could prove useful to others engaged in litigation over the USPV raid. But if it still thinks it can win this, things could get very interesting in the next few months once the FBI starts handing over documents and communications related to this raid. But, no matter how this turns out, we have enough evidence on hand already that shows the FBI is willing to lie to judges to get what it wants.
There are a variety of reasons to alter, if not actually end, the Section 702 collection. Whatever value it may have in terms of national security, the very real fact is that it has been endlessly abused by the FBI since its inception.
It’s a foreign-facing collection, which means it harvests communications and data involving foreign targets of US surveillance. But there’s a massive backdoor built into this collection. Collecting foreign communications often means collecting US persons’ communications with foreign persons or entities.
That’s where the FBI has gone interloping with alarming frequency. US persons’ communications are supposed to be masked, preventing the FBI from engaging in warrantless surveillance of US-based communications. This simply hasn’t happened. And the FBI has not only performed second-hand abuse of this collection regularly, but it has equally regularly refused to be honest with the FISA court about its activities.
The latest rejection of a clean reauthorization of Section 702 has nothing to do with the FBI’s continuous refusal to play by the rules. Instead, it has to do with the few times it decided to engage in some backdoor action that targeted the party in power or people temporarily involved with inflicting four years of Donald Trump on a nation that was definitely greater before someone started promising to make it great again.
However, the FBI — despite having abused its access for years — continues to insist the program should not be ended or altered. It has actually admitted its backdoor searches would otherwise be illegal without this program and its side benefits — something that should have hastened legislators on both sides of the political aisle to shut the whole thing down until these critical flaws were patched.
Instead, the whole thing have devolved into the expected in-fighting. Some legislators proposed meaningful reforms to the program, which were soundly rejected by a lot of Republicans simply because some Democrats were involved. The Republicans heading up the House Intelligence Committee proposed their own reforms, but the only thing they really wanted to change was the FBI’s ability to place Republicans under surveillance.
Meanwhile, the Biden Administration has decided the FBI is right, no matter how often it’s been wrong. Ignoring years of casual abuse, the Biden team has pushed for a clean reauthorization — something it may not have done if it weren’t for all the Republicans demanding (mostly for self-serving reasons) the program be ended or altered.
Unfortunately, Section 702 continues to live on, even if it’s in an unresponsive coma at the moment. Rather than let the surveillance authority expire, a bi-partisan effort did the country dirty by extending it until April 2024 where it could be further disagreed about following the return of Congressional reps to Capitol Hill.
April just isn’t good enough, apparently. The Biden Administration wants to buy even more time without any termination or authorization, presumably in hopes that the current furor will die down and this executive power will be granted a clean re-authorization. (Of course, by that point, there may be an actual Fuhrer in play, given Donald Trump’s early sweeps of critical primaries.)
The Biden administration is moving to extend a disputed warrantless surveillance program into April 2025, according to officials familiar with the matter.
The decision by the administration, which requires asking for court approval, seemed likely to roil an already turbulent debate in Congress over its fate. The program has scrambled the usual partisan lines, with members of both parties on each side of seeing the program as potentially abusive of civil liberties or as necessary for protecting national security.
This is probably preferable to holding a budget bill hostage in an executive office display of “I’ll hold my breath until I get my way.” And it’s preferable to Republican efforts to alter Section 702 simply to protect themselves from illegal surveillance. But it’s definitely not preferable to actually engaging with the inherent problems of this surveillance program, all of which seem to lead back to the FBI and its insistence on abusing its access.
This throws these problems on the back burner for another year. And it will be yet another year where the FBI abuses its access. We can make this assumption because there’s never been a year where the FBI hasn’t abused this surveillance power. Refusing to address an issue that’s been publicly acknowledged for several years now just to ensure the NSA doesn’t lose this surveillance program is irresponsible. The Biden Administration’s apparently tactic agreement with assertions made by an agency that has proven it can’t be trusted doesn’t bode well for anyone.
And, if this yearlong reprieve results in a clean reauthorization, the Biden Administration will quite possibly be handing this renewed power to Republicans now allowed to engage in their worst excesses, thanks to the re-election of Dumpster Fire Grover Cleveland.
The best thing the current administration could do at this point is allow the authority to die, which would force Republicans who love power (but hate to see it wielded against them) try to reconcile their desire for a surveillance state with the inevitable reality they will sometimes be on the receiving end of this surveillance. The worst thing it can do is what it’s doing now: pressing the pause button because it doesn’t have the desire or willingness to go head-to-head with an agency that claims — without facts in evidence — the only way it can keep this country secure from foreign threats is by warrantlessly spying on Americans.
I’m normally not a “ends justifies the means” sort of guy, but ever since some House Republicans started getting shitty about Section 702 surveillance after some of their own got swept up in the dragnet, I’ve become a bit more pragmatic. Section 702 is long overdue for reform. If it takes a bunch of conveniently angry legislators to do it, so be it.
The NSA uses this executive authorization to sweep up millions of “foreign” communications. But if one side of these communications involves a US person, the NSA is supposed to keep its eyes off of it. The same thing goes for the FBI. But the FBI has spent literal decades ignoring these restraints, preferring to dip into the NSA’s data pool as often as possible for the sole reason of converting a foreign-facing surveillance program into a handy means for domestic surveillance.
Not that it has mattered. For years, the NSA (and, by extension, the FBI) has been given a blanket blessing of their spy programs by legislators who have been convinced nothing but a clean re-authorization is acceptable in terrorist times like these.
Fortunately for all of us, the future of Section 702 remains in a particularly hellish limbo. As Dell Cameron reports for Wired, Republicans are going to war against other Republicans, limiting the chances of Section 702 moving forward without significant alteration.
The latest botched effort at salvaging a controversial US surveillance program collapsed this week thanks to a sabotage campaign by the United States House Intelligence Committee (HPSCI), crushing any hope of unraveling the program’s fate before Congress pivots to prevent a government shutdown in March.
An agreement struck between rival House committees fell apart on Wednesday after one side of the dispute—represented by HPSCI—ghosted fellow colleagues at a crucial hearing while working to poison a predetermined plan to usher a “compromise bill” to the floor.
This makes it sound like this is a bad thing. It isn’t, even if those thwarting a clean re-auth have extremely dirty hands. Legislators should definitely take a long look at this surveillance power, especially when it’s been abused routinely by the FBI to engage in surveillance of US persons who are supposed to be beyond the reach of this foreign-facing dragnet.
Some in the House want the FBI to pay for what it did to Trump loyalists. Some in the House want the FBI to do whatever it wants, so long as it can claim it’s doing (our?) God’s work in its counterterrorism efforts. Excluded from the current infighting are people who actually give a damn about limiting surveillance abuses, shunted to the side by political opportunists, loudmouths, and far too many legislators who refuse to hold the FBI accountable.
What’s odd about this scuttling is the reason it happened. It had nothing to do with Section 702 and everything to do with the government’s predilection for buying data from brokers to avoid warrant requirements erected by Supreme Court rulings.
The impetus for killing the deal, WIRED has learned, was an amendment that would end the government’s ability to pay US companies for information rather than serving them with a warrant. This includes location data collected from cell phones that are capable in many cases of tracking people’s physical whereabouts almost constantly. The data is purportedly gathered for advertising purposes but is collected by data brokers and frequently sold to US spies and police agencies instead.
Senior aides say the HPSCI chair, Mike Turner, personally exploded the deal while refusing to appear for a hearing on Wednesday in which lawmakers were meant to decide the rules surrounding the vote. A congressional website shows that HPSCI staff had not filed one of the amendments meant to be discussed before the Rules Committee, suggesting that at no point in the day did Turner plan to attend.
And that’s where we are now: legislators refusing to authorize one form of domestic surveillance because it would rather give the feds a pass on a much more prevalent form of domestic surveillance. The former once ensnared some of Trump’s buddies. The latter has yet to do so.
The infighting continues, with one side being rallied by none of than Fox News, which prefers to cater to its base, rather than provide any reporting or analysis that might accurately portray current events. The spin being pushed by Fox claims the alterations added to the bill would somehow prevent the NSA (and, by extension, the FBI) from surveilling foreign terrorists.
A Fox News report published Thursday morning, while accurately noting that it was Turner’s threat that forced Johnson to cancel the vote, goes on to cite “sources close to the Intelligence Committee” who offered analysis of the events. The sources claimed that Turner was compelled to abandon the deal because the “compromise bill” had been sneakily altered in a manner that “totally screws FISA in terms of its ability to be a national security tool.”
While redirecting blame away from Turner and his cohorts, the claim is both false and deceptive, relying on assertions that, while farcical perhaps to legal experts, would be impossible for the public at large (and most of the press) to parse alone.
Section 702 still has a good chance to survive intact. This infighting actually makes it much less likely any true reform will take place. Grandstanding has replaced oversight. But, at least for now, we can be assured the surveillance program will remain one step away from being ditched until House Republicans can reconcile their desire to protect people like Carter Page with their desire to treat everyone a little bit on the brown side as a potential terrorist.