Adam Schiff Makes Clear FBI Is Using Section 215 Like the 2014 Exception

For months, Congress has been debating the reauthorization of Section 215 of the PATRIOT Act. The House passed a compromise bill before COVID shut-downs really halted everything in Congress, though did so in such a way as to prevent Zoe Lofgren from offering any amendments. After the Senate failed to act, the provision (and two related ones lapsed). Then, a few weeks ago, the Senate passed a version that added an amendment from Mike Lee and Patrick Leahy that strengthened the amicus to the previously passed House bill. But an amendment offered by Ron Wyden and Steve Daines failed by one vote after Tom Carper said that Pelosi had warned him its passage would gut FISA (and after Bernie Sanders and Patty Murray didn’t make it for the vote). The operative language of their amendment read,

(C) An application under paragraph (1) may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information.

Zoe Lofgren and Warren Davidson tried to pass that amendment in the House. Over a weekend of heated negotiations, they limited the Wyden-Daines language to apply just to US persons.

(C) An application under paragraph (1) may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information of United States persons.

At first, Wyden endorsed the Lofgren-Davidson language. Except then Adam Schiff gave Charlie Savage a statement that suggested the amendment would only prevent the government from seeking to obtain Americans’ internet information, not prevent it altogether.

But in his own statement, Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders “to seek to obtain” an American’s internet information.

That led Ron Wyden to withdraw his support. Leadership withdrew that amendment from the Rule.

Schiff’s ploy seems to suggest one way the government is using Section 215.

Wyden had previously asked how each of three applications for Section 215 would appear in counts:

  • An order in which an IP address used by multiple people is the target
  • An order collecting all the people who visit a particular website
  • An order collecting all the web browsing and internet searches of a single user

I’ve argued in the past that the FBI wouldn’t go to the trouble of a Section 215 order for a person who was not otherwise targeted, the last bullet. Schiff’s willingness to limit collection to foreigners is consistent with that (because targeting non-US persons has a lower probable cause level), meaning that’s not the function the government is so intent on preserving.

Which leaves Wyden’s IP address used by multiple people and a website, what I have suggested might be VPNs and WikiLeaks. Those are the applications that Schiff (and Pelosi) are going to the mat to protect.

That makes something that happened in 2014 important. That year, FISC permitted the government to remain tasked on a selector under 702 (which can only target foreigners) even after finding that Americans were using the selector, provided the US person content was purged after the fact. Except ODNI made a list of enumerated crimes — virtually all of which exploit the Dark Web — that Section 702 content could be used to prosecute. Richard Burr codified that principle when the law was reauthorized in 2017.

Schiff has invoked the same principle — allowing the FBI to target a URL or IP, and in the name of obtaining foreign intelligence, obtaining the US person activity as well. Because this is not treated as “content,” the government may not be limited to instances where the US person activity is location obscured (though it’s possible this is just about obtaining VPN traffic, and not something like WikiLeaks).

Wyden called the resulting practice (remember, this is status quo), as “dragnet surveillance.”

“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.

So once again — still — the government is using a foreign targeted law to obtain leads of Americans to investigate. That, apparently, is what Pelosi considers the key part of FISA: honey pots to identify Americans to investigate.

Meanwhile, DOJ doesn’t even like the changes Lee and Leahy implemented, falsely claiming that the law — which requires DOJ to meet the standards laid out voluntarily by FBI’s response to the DOJ IG Report — does nothing to address the problems identified by the IG Report.

The Department worked closely with House leaders on both sides of the aisle to draft legislation to reauthorize three national security authorities in the U.S.A. Freedom Act while also imposing reforms to other aspects of FISA designed to address issues identified by the DOJ Inspector General. Although that legislation was approved with a large, bipartisan House majority, the Senate thereafter made significant changes that the Department opposed because they would unacceptably impair our ability to pursue terrorists and spies. We have proposed specific fixes to the most significant problems created by the changes the Senate made. Instead of addressing those issues, the House is now poised to further amend the legislation in a manner that will weaken national security tools while doing nothing to address the abuses identified by the DOJ Inspector General.

Accordingly, the Department opposes the Senate-passed bill in its current form and also opposes the Lofgren amendment in the House. Given the cumulative negative effect of these legislative changes on the Department’s ability to identify and track terrorists and spies, the Department must oppose the legislation now under consideration in the House. If passed, the Attorney General would recommend that the President veto the legislation.

Trump, meanwhile, is opposing the bill because it doesn’t go far enough.


Republicans are inventing reasons to oppose it after supporting it in March.

Back in March, Billy Barr said he could do what he needed to with EO 12333. It’s unclear how he’d coerce providers.

But Schiff’s efforts to defeat Wyden make it clear this is a function designed to identify Americans.

Update: I had thought a current vote was on FISA, but is on China sanctions, so I’ve deleted.

19 replies
  1. Rugger9 says:

    It is strange that AG Barr would let an opportunity pass where he could sanctify what he’s trying to do for the campaign. That he is doing his dirty work is expected and currently secret, so why not keep DJT happy with a shiny object while immunizing himself?

  2. JamesJoyce says:

    Trump is a bloviating bullshit artist.

    He like all politicians use anything and anyone to
    advance self interest.

    When Trump says he “does not support” warrantless surveillance, he means he does.

    Both political parties do…

    It is about “Control.”

    Google “Slaveowner.”

    • RMD says:

      Watched the documentary The Panama Papers last night.
      Editorial critiques of this or that aside….it was an important reminder of the structural inequities in most governments.
      Among a bucketful of pull quotes, the overt, stated, practiced agenda of eviscerating oversight and journalistic independence, ….of course, along with the buying of representation at every bar stool, corner grocery, House of Representatives, Senate, Judiciary, Administration, Presidency…. is just fairly out in the open.
      But a resonating refrain was the systematic intimidation and undermining of the press.
      Murdering journalists, judges, whomever….is a yawning, everyday ho hum regular thing.
      And….it is working.
      In the place of true, independent investigative journalism, we have Facefuck, Ratfuck, Faceplant or whatever it’s called these days.

      Hoovering up all in its path. And Billionaires like Fuckerberg actively and systematically support the right wing, support Trump, and suppress Democrats, Liberals, Independents.

      Someone quipped, sorry, no attribution, “Pay no attention to the Billionaires behind the media curtain”

      Look at who Trump allies and aligns himself with and check out their MO.
      Putin assassinate journalists and political rivals
      Duterte same
      Bolsinaro same
      “Sam with the showing scalp top, particular about the point it made”
      And Skippy from up North in Ko-re-ah

      The attacks on the press, the attacks on everything, are part of Bannon’s rage-o-sphere, deconstruction, and most importantly, solidifying the hold on power by the most corrupt, most powerful, wealthiest on the planet.

      The Panama Papers, ALL of the banks, institutional evasion of responsibility, evasion of taxes, and championed by the most corrupt political party in two or three generations.

      I tire of the daily little isms of this or that outrageous act, statement, policy, etc.
      There is a barely comprehensible scale of outrages that are systemically being perpetrated against all of humanity.
      It ain’t just fuckfacevonclownstick.

    • P J Evans says:

      I think he might genuinely be afraid of warrantless surveillance – who knows what they might catch him at?

      • RMD says:

        ‘Donald Trump’ prances 3450 times throughout the trove of documents known as the Panama Papers [ link:

        Trump’s pattern and practice has always been to obstruct, hide, suppress, buy-out, capture and kill stories, intimidate with boasts, threats to sue, actual legal action, threats to withhold favor, goods or services….

        A vile, corrupt, and cravenly manipulative opportunist in league with antiheroes.

  3. civil says:

    Trump, as usual, says whatever he finds convenient to say in the moment. He signed the FISA Amendments Reauthorization Act of 2017, which (as Ms. Wheeler notes) includes warrantless surveillance of Americans. He’s subsequently tweeted that “If the FISA Bill is passed tonight on the House floor, I will quickly VETO it. Our Country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!,” trying to link it to the Page FISA warrants, though as Bradley Moss notes, “The FISA legislation at issue has nothing to do with Title I of FISA, which was the basis for the Carter Page warrant. Trump would know that if he had a clue about any of this beyond headlines.” So Trump is threatening to veto this bill in order to advance his false narrative.

  4. Eastman says:

    Thanks for the article and working through the amendments so logically. This is a somewhat off topic (and basic) question, but I’m wondering what the definition of a “us person” is. Is it a citizen, green card holder, anyone on US soil etc? This language seems conspicuously vague to me, and I’m curious what to make of it. This strikes me as a question that many people here will have a good answer to, and obviously definitions are important.

  5. Eureka says:

    Aside (or could this be part of the point): Call me naive, but I thought lots of people used VPNs to escape the big data pool of corporate surveillance. So who is tracing out the activity of Americans they find on VPNs — corporations (contractors)?

  6. x174 says:

    mt–thanks for distilling out the quintessence of the intense back and forth. i wonder how much this debate has to do with the flynn imbroglio and future flynns.

  7. earlofhuntingdon says:

    A day late and a little short, the Guardian riffs off bmaz’s road movie theme (without attribution), with this ill-advised academical title: “Ill-advised car journeys on film – ranked!” That might also be a rendering of a Trump tweet or a pitch for where to open an account, if you wanted the worst toaster in return.

    The Guardian frames its list as an homage to the execrable Dominic Cummings. (His latest scandal involves flouting the self-quarantine rules he wrote by driving hundreds of miles – while sick – to visit family.) Cummings is widely regarded as a wealthy shadow creature and the prime minister’s brain. A starving Karl Rove vine grafted onto Dick Cheney root stock, as it were. He thinks up and does what Boris is too lazy to do. Among other things, that includes remaking the civil service in his politicized, sociopathic, neoliberal image. I expect he will one day repaint the ceiling of No. 10 to show him giving the finger of life (possibly two) to Boris the Other Johnson.

    As for road movies, the Guardian’s list has several that made it onto bmaz’s: Duel, Thelma and Louise, the Italian job (with Michael Caine and Noel Coward), the Blues Brothers, and Planes, Trains, and Automobiles. And several that didn’t: Fast & Furious 6 and Sonic the Hedgehog. Go figure.

    • bmaz says:

      Hilarious. The one that sticks out is Planes, Trains and Automobiles. I thought it okay, but not that great. Somebody brought the VCR of it to the boat on Powell and left it for eternity. There was no TV there at the time (now would probably have satellite I suppose), so VCR tapes were watched multiple times over the years. It was okay, but not really a classic to my eye. The original National Lampoon’s Vacation is fair though.

      • RMD says:

        It’s a Mad Mad Mad Mad World (1963)
        [from IMDB] a reckless driver causes a massive traffic jam, and just before kicking the bucket, he cryptically tells the a wacky assortment of drivers that he’s buried a fortune in stolen loot under the Big W.
        – farcical hilarity ensues as this cast of characters sets out to find the fortune.

    • BeingThere says:

      A “Dominic Cummings” is now a golf term – a really long drive that goes way out of bounds but for which there is no penalty!

  8. earlofhuntingdon says:

    On a less frivolous note, the Don has taken to repurposing an old genocidal slogan: “The only good Democrat is a dead Democrat.” He blames it on someone else, but retwts the imagery. He thereby encourages and extends his approval to those who violently act on it.

    Trump’s murderous Covid-19 non-response among the Navajo and his general abuse of tribal lands nationally suggest he is fond of the original rendering. But the Don does not discriminate when he discriminates. He has the same attitude about African Americans, Latinos, women, immigrants, Democrats, and any Goopers who fail to get with the program.

    The implicit and explicit violence, without restraint, is the message. It’s a long time to November, and even longer until January 20th.

    • RMD says:

      Needed to respond to the slogan: “The only good Democrat is a dead Democrat.”

      In conv the other day w a devoted, ardent, blinders-on Republican.
      When appraised of a litany of Trump’s egregious hideousnesses, he replied, “You know, Trump was a Democrat”

      Blood pressure spiked at that sweeping disclaimer.

      Yeah, after all…he was a Democrat.

      *&^%$#@! Republicans

      Constitutionally incapable of seeing their reflection in a mirror.
      Wasn’t that a trope in some myths?
      or, that they were only capable of looking, adoringly, at their reflection in a pool?

      came back with: what about the entire R party that supports every thing T does? What of their behavior?


      • Geoguy says:

        I’m not sure Trump was ever a Democrat. Fiorello La Guardia’s term ended in 1945 and he was the last republican mayor of NY until Giuliani in 1994. Trump was just donating to the Democratic Party to curry favor with the administrations in office.

        • RMD says:

          It gives me no pleasure to relate the following:
          According to Wikipedia:

          Political party
          Republican (1987–1999, 2009–2011, 2012–present)
          Other political affiliations
          Democratic (until 1987, 2001–2009)
          Reform (1999–2001)
          Independent (2011–2012)

          and elsewhere:

          When Donald Trump Was a Democrat
          It turns out you don’t have to look far to find evidence that Trump wasn’t always a conservative Republican.

          Trump was registered as a Democrat for more than eight years in the 2000s, according to New York City voter records made public during his campaign for president in 2016.

          Trump owned up to his years with the other party and told CNN he identified with Democrats during that time because they were more adept at handling the economy.

          Said Trump:

          “It just seems that the economy does better under the Democrats than the Republicans. Now, it shouldn’t be that way. But if you go back, I mean it just seems that the economy does better under the Democrats. … But certainly we had some very good economies under Democrats, as well as Republicans. But we’ve had some pretty bad disasters under the Republicans.”
          Trump was a registered Democrat from Aug 2001 through Sep 2009


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