FBI Surveillance Fears Are Uniting a Badly Broken Congress

Fears over the death of privacy in the United States are turning some of Washington’s most pronounced enemies into the strangest of bedfellows. Lawmakers usually thought incapable of reconciling even the smallest of differences are finding rare common ground over a shared mistrust of the Federal Bureau of Investigation, and a mutual disdain for domestic spying.

At a committee hearing Wednesday, US Representative Zoe Lofgren of California called out the FBI’s director, Christopher Wray, over a disclosure he’d reluctantly made in March: Not long ago, he said, the FBI had circumvented the need to obtain search warrants by buying commercial data that revealed the whereabouts of an unknown number of Americans. Buying this data, rather than compelling its disclosure, allowed the FBI to forgo asking a judge’s permission—a requirement as of 2018, thanks to the Supreme Court decision Carpenter v. United States.

Disturbed by this revelation, Lofgren—a 14-term Democrat and leader of past efforts to curb government surveillance on US soil—used the hearing to take a deeper interest in Wray’s claim that the data was originally collected for advertising purposes. Wray showed resistance to revealing anything new, saying only that the deal was legal and that his staff would follow up with Lofgren; that way, he added, “I don’t leave something important out.”

With limited time, Lofgren moved on to other concerns. But as her time expired she ended with a warning: “We’ll be looking into those warrant requirements later.” Jim Jordan, the committee’s Republican chair, chimed in as Lofrgen’s microphone went dead. “We sure will,” he said. “We sure will.”

Since last year’s raid on ex-president Donald Trump’s Mar-a-Lago residence, the FBI has been persona non grata in most conservative circles. Widely despised on the right, the bureau is a boogeyman featured in many right-wing conspiracy theories, largely designed to explain away Trump’s election defeat and the role of his supporters in the insurrection that followed. Many of the questions that top Republicans put to Wray on Wednesday were seemingly designed to lend credence to these theories. A few members, like Matt Gaetz of Florida, dove deep into InfoWars-like waters.

One line of questioning was plainly meant to implicate the FBI in helping to plant a bomb outside of a Democratic Party building on the day of the insurrection. Unfortunately, it’s the bureau’s own troubled history that makes it so difficult to defend against such claims.

It fell mostly on Democrats like Lofgren to point out the irony in labeling an organization known for its Christian conservative leanings of being secretly chock-full of anarchists. Congressman Ken Buck of Colorado noted that Wray’s Wikipedia page lists him as a registered Republican. “I hope," he said, "you don’t change your party affiliation after this hearing is over.”

One of the farthest-right members in the House, Gaetz took his turn questioning Wray immediately after Lofgren. His first words were in her defense. “The American people need to understand what just happened,” he railed. “My Democratic colleague just asked the director of the FBI whether or not they are buying information about our fellow Americans, and the answer is, ‘Well, we’ll just have to get back to you.’”

In an exchange overheard by an Associated Press reporter present for the hearing, Gaetz also heaped praise on another political rival moments after she, too, laid into the director. (“That was terrific," he reportedly said.)

Congresswoman Pramila Jayapal of Washington had dedicated much of her time to drawing attention to a report declassified last month by Avril Haines, the director of national intelligence and America’s “top spy.” The report states that the purchasing of personal information typically protected under the US constitution—GPS data pulled largely from cell phones, in particular—is a widespread practice throughout the intelligence community (of which, notably, the FBI is a member).

The report deems the data being actively collected by the US government to be both “sensitive and intimate.” In the wrong hands, a group of former spies turned advisers to Haines wrote, Americans would be vulnerable to serious crimes like harassment, identity theft, and blackmail. Intelligence agencies collect this data, nevertheless, the report states, using a legal theory that paying for it removes any need to obtain a search warrant.

Privacy experts at digital rights groups, including Demand Progress and the American Civil Liberties Union, consider this practice a legal loophole at odds with the US Constitution’s goal of protecting against unlawful searches and seizures. Many lawmakers, including Jayapal and Lofgren, feel similarly.

Wray went on to explain that his story had not changed since he first disclosed the purchases in March and that the FBI was not actively purchasing location data at this moment. It is unclear what exactly became of the data it did purchase or how it was used, if at all. The FBI has said the data was collected by private companies for advertising purposes and that it was acquired by the government for a vague “pilot project.” An FBI spokesperson did not immediately respond to a request for comment.

The protection of location and web browsing data were not the only concern raised by lawmakers Wednesday. Republican Thomas Massie would also pepper Wray with questions about another FBI request for “gun purchase records” reportedly issued to a major US bank. The records, Massie claimed, had “no geographical boundaries,” meaning the request was likely not limited to a particular area, city, or state.

Wray resisted the questions, as he had for most of the hearing. “What I do know,” the director said, “is that a number of business community partners all the time—including financial institutions–share information with us about possible criminal activity.” Massie then asked Wray to clarify whether the bank had volunteered the data or whether the FBI had requested it first.

Wray declined to respond to the question, saying he could not “speak to specifics.”

Wray was not entirely opposed to the idea of bettering privacy protections for at least some Americans. Law enforcement officers, he noted, face threats of violence every day as a result of being doxed online. “The more information, personalized information, about law enforcement professionals that is on the internet, the more people who may be unstable or inclined to violence there are out there who can choose to act on it,” he said.

But police officers, who are armed and trained to defend themselves from a variety of dangers, are not the only people who face such threats. As past reporting has shown, however, they are, on occasion, the ones who are doing the doxing.

Separately, another House committee on Thursday advanced an amendment to a “must-pass” defense spending bill that would order all US military departments to forgo purchasing data that would “otherwise require a warrant, court order, or subpoena.” This would include the same type of location-based purchases previously acknowledged by the FBI, though the FBI itself is not bound by the amendment. The new law would, instead, cover roughly half of the US intelligence community’s 17 members—those, such as the National Security Agency and Office of Naval Intelligence, that fall under the Defense Department’s umbrella.

Previously, several agencies reporting to the Defense Department, including special operations teams and the Defense Intelligence Agency, have acknowledged purchasing commercial data that would normally have required a warrant.

Whether the defense amendment—introduced by Warren Davidson, a Republican—will survive Congress and eventually become law is impossible to say at this juncture. But the fact that it was adopted by the House of Representatives at all is nothing short of a watershed moment for privacy defenders; a reflection of the growing unease among US lawmakers with the government’s current outlook on its authority to warrantlessly surveil its own citizens.