Government Surveillance Bill Is Sidelined by Privacy Question

The House of Representatives, after closed-door negotiations, came to an agreement to bring an amendment to vote that would protect Americans from FBI and CIA surveillance of their web browsing history without a warrant. The amendment, introduced by Zoe Lofgren (D-California) and Warren Davidson (R-Ohio), would be a “significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” said Lofgren. However, after full details of the proposal were released, debate over who would specifically be protected led to the amendment’s downfall.

The Senate earlier passed the USA Freedom Reauthorization Act to reinstate the expired Patriot Act. It also approved reauthorization of the Foreign Intelligence Surveillance Act (FISA) earlier this month, but House Democrats pulled the bill today, “as Republicans united to oppose the Senate-passed proposal,” reports CNBC, and “President Trump pledged to veto it.”

According to CNET, the bill “has been put on ice after its privacy protections were removed,” despite “a wave of support from privacy advocates and lawmakers.” The amendment reportedly ran into trouble over the interpretation of a single line featuring the phrase “United States persons.”

“Privacy advocates interpreted that phrase to mean that undocumented people living in the U.S. would still be vulnerable to widespread surveillance,” explains CNET.

Gizmodo reported earlier in the week that, “if the government wishes to access the IP addresses of everyone who has visited a particular website, it could not do so without a warrant unless it can ‘guarantee’ that no U.S. persons will be identified.” “For too long, Americans’ most private information has been compromised by vague laws and lax privacy protections,” said Davidson. “With the vote on the Lofgren-Davidson amendment to FISA reform this week, we take an important step toward restoring Americans’ long-neglected Fourth Amendment rights.”

Ron Wyden (D-Oregon), who “cosponsored a Senate version of the amendment, initially announced his support for the Lofgren-Davidson amendment, but later withdrew it based on remarks House Intelligence chairman Adam Schiff [made] … which appeared to downplay the bill’s impact.”

Other privacy advocates have identified Schiff, who thinks the amendment’s protections are inadequate, as “a significant roadblock to the amendment’s success.”

In February, the House Judiciary Committee, “which has primary jurisdiction over FISA-related issues, canceled its own markup hearing to stop Lofgren and Davidson from introducing their amendment.” In mid-March, the House Rules Committee attached a provision “to attract Republican votes that gave the U.S. attorney general final authority over investigations involving U.S. politicians.”

TechSpot reports that the Senate bill, proposed by Wyden and Steve Daines (R-Montana), was not opposed by either party but “failed to reach a 60-vote threshold by only one vote,” which it dubs “an embarrassment.” Due to this failure, Mozilla, Reddit, Twitter and Patreon among other tech companies co-signed a letter “asking the House of Representatives to tidy up this mess.”

“Our users demand that we serve as responsible stewards of their private information, and our industry is predicated on that trust,” said the letter. “Americans deserve to have their online searches and browsing kept private, and only available to the government pursuant to a warrant.” The NAACP, the American Civil Liberties Union and Human Rights Watch, among “dozens of civil rights and liberties groups,” also support the amendment.

“As written, the amendment would not prevent warrantless surveillance of Internet search history and browsing history of individuals in the U.S.,” said ACLU senior legislative counsel Neema Singh Guliani. “A clear bright-line rule prohibiting such surveillance is both consistent with the Fourth Amendment and critical to ensuring that the information of U.S. citizens is not wrongly swept up.”

While “the original Wyden-Daines amendment did extend that protection,” notes CNET, “it was taken out in the Lofgren-Davidson amendment.” The two amendments were originally identical, according to sources, but changed following negotiations with Schiff. “The amendment had been expected to go for a vote on Wednesday, but the added terms were likely to have gutted privacy protections for people’s browser histories.”

Related:
Pelosi Pulls Vote on FISA Bill After Trump Veto Threat, The Hill, 5/27/20
Wyden Pulls Support for Privacy Amendment After Rep. Adam Schiff Downplays Impact to NYTimes, Gizmodo, 5/26/20
Mozilla, Twitter, Reddit Join Forces in Effort to Block Browsing Data From Warrantless Access, ZDNet, 5/25/20