Enlarge /. Rep. Zoe Lofgren (D-Calif.), Center, on Capitol Hill in March 2020.
A change to protect American search and search records from government sniffing is becoming increasingly important in the House of Representatives. A vote on the proposal could take place on Wednesday.
Two weeks ago, the Senate passed a law to renew a controversial espionage provision of the Patriot Act, known as Section 215. Senate privacy advocates proposed an amendment that would prohibit the FBI from using Section 215 to preserve American search and browsing histories. The proposal was supported by 59 out of 100 senators – one less than the 60 votes required for the change to be adopted in accordance with the Senate's dysfunctional rules.
Now the bill has passed to the House of Representatives, where privacy advocates hope for more success. The house does not have the same super majority rule, so it should take no more than a simple majority to pass the amendment. That would trigger a showdown with the Senate over the final text of the bill.
Section 215 was originally adopted in 2001 after the September 11 terrorist attacks. It gave the FBI the power to receive "anything tangible," including "books, records, papers, documents, and other items," without a warrant. The provision is limited to foreign intelligence activities. It should not be used for ordinary criminal matters. But civil rights groups have long protested their breadth and lack of judicial control.
Section 215 expired in March and Congress has been working on laws to renew it. While the Senate bill contained some minor data protection regulations – including protecting location data for mobile phones, which largely corresponds to a Supreme Court precedent – the most important privacy struggle was for browsers and searches.
The change protects the privacy of Americans while surfing and searching
Enlarge /. MP Warren Davidson (R-Ohio) in 2019.
Bill Clark / CQ Appeal, Inc via Getty Images
The main sponsors of the privacy change for in-house searches are Rep. Zoe Lofgren (D-Calif.) And Rep. Warren Davidson (R-Ohio). Last Friday, they received a pledge from the House leadership to vote on a privacy change in search when this week’s broader section 215 bill is up for grabs. The two representatives then spent the weekend clarifying the details of their amendment.
On Tuesday, Lofgren announced that she and Davidson had reached an agreement with two key leaders of the House – the chairman of the Secret Service Committee, Adam Schiff, and the chairman of the Justice Committee, Jerrold Nadler – on the content of the amendment.
The amendment is only three pages long. Its key provision states that an application under Section 215 "may not apply for an order that authorizes or requires the creation of information related to browsing the Internet website or the history of Internet searches by people in the United States".
A press release from Lofgren's office states that the change should prohibit the "accidental" collection of search or browsing records by Americans. This has long been an issue in the surveillance debate. A secret service could officially spy on a foreigner, but do so in such a way that a lot of American private information is caught.
The Lofgren / Davidson amendment would tighten the rules against such things and help ensure that surveillance of "foreign" intelligence agencies is actually limited to foreigners. Intelligence agencies could still spy on Americans' browsing history if needed, but they would have to persuade a judge to issue a warrant – a more demanding process that helps control abuse of state surveillance powers.
Trump has sparked interest from both parties in surveillance reform
The White House party has traditionally been enthusiastic about restricting the surveillance state. But the Trump era was a little different. Even though Donald Trump is now responsible for US intelligence agencies, he continued to look at them with suspicion. He particularly fought the FBI because it monitored Trump employees during the 2016 campaign.
This has upset the loyalty of partisans to surveillance issues in Congress. When the Senate voted earlier this month on an amendment to protect search and browsing history, there was a mix of Republicans and Democrats on both sides of the vote. The amendment received 24 Republican and 34 Democratic votes. 27 Republicans and 10 Democrats voted against the amendment. In other words, most Democrats supported the amendment and most Republicans rejected it, but the guerrilla difference here was not as strong as on other issues.
A similar division of the partisans in the house could provide a strong majority for privacy searches and searches. Democrats keep the majority in the house, and Schiff and Nadler's support on Tuesday could be a sign that the Democrats are behind the amendment.
If the proposal is accepted, the bill would have to be sent back to the Senate. It should be noted here that four senators – Lamar Alexander (R-Tenn.), Patty Murray (D-Wash.), Bernie Sanders (I-Vt.) And Ben Sasse (R-Neb.) – missed the vote in the Senate the privacy change earlier this month. If one of them joined the other supporters of the Senate amendment, it would be enough to overdo it in the upper chamber.