Despite online privacy concerns at an all-time high, the Senate rejected a critical reform to the Patriot Act yesterday, voting to hand the Trump administration and Attorney General William Barr the ability to spy on Americans’ web browsing habits without a warrant.
The proposed amendment, introduced by Senators Ron Wyden and Steve Daines, would have shielded Americans' internet browsing and search histories from warrantless surveillance and fell just one vote short of reaching the 60-vote threshold necessary for cloture. Four Senators, including one who is currently quarantining after a staffer tested positive for Covid-19, did not participate in the in-person vote
The bad news was tempered by a more positive development later in the afternoon: A second amendment focused on more FISA court accountability, from Senators Mike Lee and Patrick Leahy, passed comfortably, and will add a civil liberties advocate to represent the public in certain surveillance court proceedings.
The Senate, reconvening under special social distancing rules, was debating the renewal of a number of controversial Patriot Act provisions. Senate majority leader Mitch McConnell had reportedly sought to expand law enforcement capabilities for the Trump administration to reach into anyone’s internet browsing and search histories without a warrant. According to a report by the Daily Beast, McConnell drafted a pair of amendments that would explicitly grant Barr's Department of Justice the power to collect that information on anyone in the United States.
These amendments modify the Patriot Act reauthorization passed by the House of Representatives last March. At that time, surveillance hawks in Senate leadership roles sought a showdown over the expiring spy powers, attempting unsuccessfully to force through reauthorization of the Patriot Act with none of the badly needed reforms under discussion now. Instead, the surveillance authorities have been allowed to lapse, and have not been operational for nearly two months.
Predictably, the lapse has proceeded without catastrophe. Although the lawmakers who perpetually advocate for domestic surveillance tout the necessity of these authorities—including Section 215 of the Patriot Act, which has been repeatedly and flagrantly abused—they reached a sunset without incident in 2015 and again now, as Congress debates necessary reforms.
Yesterday’s actions in the Senate are frightening on their own, but downright terrifying when considered alongside the proposed EARN-IT Act, which could effectively undermine standard privacy protections and essential encryption technology. EARN-IT is being pushed by a collection of Senators spanning the partisan aisle to create new monitoring obligations for tech companies and platforms. As Senator Wyden told the New Republic in a statement, "Together, EARN It and Mitch McConnell’s Patriot Act amendments would give the most corrupt attorney general of our lifetime unprecedented ability to pry into everything Americans do and say online."
Needless to say, both of these bills have huge implications for hundreds of millions of Americans — including every journalist who relies on the internet to do sensitive research or speak with sources. Because the Lee-Leahy amendment modified the bill, it will likely head back to the House for another vote after its final passage in the Senate. We encourage you to contact your Representative and urge them to vote against any legislation that would weaken privacy rights in this country.