A bipartisan amendment that would have prohibited law enforcement agencies, such as the FBI, from accessing American citizens’ browsing history without a warrant failed to pass the U.S. Senate, receiving just 59 of the 60 votes needed to pass. Twenty-seven Republicans and ten Democrats voted against the amendment to HR 6172. The amendment, proposed by Senator Ron Wyden, D-Oregon, and Senator Steve Daines, R-Montana, would require the government to have a warrant to access Americans’ browsing history. Under Section 215 of the law, the government can compel telephone companies and internet service providers to hand over user data associated with information such as browsing history if it is deemed relevant to a terrorism case or any other controversial case.
In a speech to the U.S. Senate before the vote, Senator Wyden raised the question of whether law-abiding Americans should be concerned about the government having access to their lives at all times of the day. Specifically, Wyden said that the average American might think that they don’t have to worry about anything, since they haven’t done anything wrong, and therefore the government has no reason to suspect them of anything, even if they have access to their browsing history. However, regarding this perception, Wyden points out that the issue at hand is not related to whether someone has done anything wrong or bad, but to whether a government agent has the right to control an American citizen’s browsing history, which means they can access a lot of their personal information.
Both Wyden and Daines used US President Donald Trump as an example to show why the amendment should be passed, each giving different reasons for their stance. Specifically, Wyden referred to Trump’s frequent calls for investigations into his political enemies and noted that Attorney General William Barr has conducted investigations that negatively affect Trump’s political interests. He also pointed to the Justice Department’s recent attempt to exonerate Michael Flynn, who pleaded guilty in December 2017 to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak. Daines, on the other hand, referred to what some administration bureaucrats have done to President Trump, abusing FISA to serve their own political motives. He also added that their government was spying on an American citizen, a political advisor to then-candidate Trump, without oversight, emphasizing that what happened to Trump could happen to anyone and for any purpose. And this is a very serious issue.
As Daines said in a speech Tuesday morning, the Patriot Act and the Foreign Intelligence Surveillance Act, commonly referred to as FISA, have long been used to trample on the civil liberties of American citizens. In a statement to Gizmodo after the vote, Daines said he will continue to push for FISA reform, saying it is critical to Americans’ privacy. The final vote on the Wyden-Daines amendment was 59-37. It failed to pass the U.S. Senate, which required sixty “yes” votes, and all members of the Senate had to be present to vote.
However, four members did not vote: Senator Bernie Sanders (I-VT), Senator Ben Sasse (R-NE), Senator Lamar Alexander (R-TN) and Senator Patty Murray (D-WA). Senator Alexander is in quarantine after a staff member tested positive for COVID-19. Senators Sanders, Sasse and Murray have not yet commented. Senator Mark Warner’s office said that while the Virginia senator is positive about the reforms proposed by Wyden and Daines, the safety and law enforcement principles in the bill are very important. Warner, the vice chairman of the Senate Intelligence Committee, remains concerned that the changes to the bill will delay its passage through the House or even kill it altogether.
A separate amendment proposed by Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) was approved by the U.S. Senate. It includes several provisions designed to protect Americans and their civil liberties. Among other reforms to the amicus curiae, the amendment requires the FISA court to appoint one or more individuals with expertise in privacy and civil liberties issues to cases that raise significant concerns about activities protected by the First Amendment. The amendment proposed by Wyden and Daines was defeated. The approval of the Lee and Leahy amendment represents a much bigger victory for privacy than many believed possible, and it marks a long-awaited shift in Congress on privacy, as well as the beginning of other struggles to ensure it.
