UPDATE 2 (May 27, 2020): The House amendment crafted on May 22 is now hitting significant roadblocks due to a deviation from the Senate amendment that offers fewer protections for internet consumers. The House version would limit the restrictions around internet surveillance to US residents, thereby allowing warrantless searches for non-US residents’ data, which also allows for the possibility of government surveillance of Americans’ browsing history so long as that surveillance was deemed not deliberate. The sponsor of the Senate amendment, Ron Wyden of Oregon, pulled his support for the House provision, and progressive privacy advocates sent a letter to members of the House calling on them to vote against the amendment and the larger bill to reauthorize lapsed provisions of the FISA Act. This has threatened to hamper reauthorization of the law as a whole.
UPDATE 1 (May 22, 2020): Members of the House of Representatives struck a tentative deal to include an amendment that would block law enforcement from accessing Americans’ web browsing history without a warrant. “After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” said amendment co-authors Reps. Zoe Lofgren (D-Calif.) and and Warren Davidson (R-Ohio).
Last Wednesday, May 13, a rather important internet privacy vote came and went in the US Senate. It did so without the normal and oftentimes necessary loud protest and coverage from data privacy groups and the public at large because of the continued pandemic crisis and the patchwork focus on reopening the country. Yet this vote in the Senate is one you should know about.
A bipartisan amendment brought by Sens. Steve Daines (R-MT) and Ron Wyden (D-OR) would have mandated that the government obtain a warrant before accessing Americans’ web browsing data.
Isn’t this what our government has to do already, you may ask. No. Under Section 215 of the PATRIOT Act, the government can collect nearly all your web browsing data so long as they deem it relevant to an investigation. This section of the Patriot Act became a temporary focus in the US in 2013, when former NSA contractor Edward Snowden leaked documents showing that the law was being used to secretly surveil millions of Americans without warrants.
Sen. Wyden explained his rationale in a speech before the Senate just prior to the vote:
Right now, the government can collect web browsing and internet search history without a warrant under Section 215 of the Patriot Act. Section 215 is the most controversial and dangerous provision of [the Foreign Intelligence Surveillance Act]. That’s because it is so vague and so broad. Under Section 215, the government can collect just about anything so long as it is relevant to an investigation. This can include the private records of innocent, law-abiding Americans. They don’t have to have done anything wrong. They don’t have to be suspected of anything. They don’t even have to have been in contact with anyone suspected of anything. Their personal information just has to be “relevant.”
The Wyden/Daines amendment was only seven lines long, but would have prevented your searches and the URLs you visit from being swept up in broad-ranging warrantless mass surveillance operations by law enforcement.
And to make things worse, the amendment only failed by one vote. And four senators didn’t vote at all: Lamar Alexander (R-TN); Ben Sasse (R-NE); Patty Murray (D-WA); and Bernie Sanders (I-VT).
So what does this mean exactly? Unfortunately, no one exactly knows. Sean Vitka, senior policy counsel for Demand Progress, a progressive internet freedoms organization, explains that the Wyden/Daines amendment would have prevented law enforcement from using the PATRIOT Act to justify warrantless collection of internet history, but it’s failure creates a gray area in which it may or may not be explicitly allowed.
How often are gray areas good for a nation’s citizens?
So what does this mean for you? First, it means that your internet browsing history can be collected by US law enforcement without a warrant, without proving probable cause, and without you ever knowing about it.
Second, the close vote means that a tiny bit of citizen lobbying could have made the difference in changing this law. While it’s not certain how Sens. Alexander and Sasse would have voted on this issue, Sen. Murray is on record supporting this amendment, and Sen. Sanders has often spoken about the peoples’ right to privacy. Had more Americans known about this amendment or the upcoming vote, they could have called and written their Senators and demanded they be present in the Senate chambers to cast a vote on this important issue. However, as we have seen many times, when the public is paying attention to other things, important issues often receive short shrift.
And in case you’re thinking that it was only one vote, and there should be a way to get that amendment back into the bill — you should know the Patriot Act reauthorization bill, without the Wyden-Daines amendment, passed in the Senate on Thursday and was sent to the House. There’s a slim chance changes can be made with action from Congress, but only if the nation is paying better attention.