A bipartisan coalition of privacy advocates in Congress has fractured after national security hawks meddled with a proposal that would have stopped government agencies from collecting Americans’ web browsing data without a warrant.
The proposal was introduced in the House of Representatives as part of a bill to reauthorize key sections of the Patriot Act, the sprawling surveillance law that was passed in the aftermath of 9/11. The amendment was originally meant to stop federal agencies from warrantlessly collecting web browsing and search history. But after a last-minute modification from House Intelligence Committee leader Adam Schiff (D-CA), privacy advocates have dropped their support, saying that the modified proposal fails to constrain the government’s surveillance authorities and explicitly leaves immigrants and undocumented people without protection.
“Schiff may be the biggest hypocrite in Congress,” said Evan Greer, the deputy director of Fight For The Future, in an emailed statement. “He constantly talks about how the Trump administration is dangerous and authoritarian. And he’s right. But time and time again he has done everything in his power to ensure that the Trump administration has essentially limitless domestic surveillance authority that can be weaponized to target immigrants, activists, journalists, and religious minorities.”
The language that was added creates ambiguity as to whether or not internet activity can be collected without a warrant. Specifically, Schiff added a line which specifies that federal agencies like the FBI can not “seek to obtain” the internet activity of “U.S. persons” without a warrant. Privacy advocates objected, noting that this excludes asylum seekers and immigrants who are not permanent residents, and leaves the measure open to interpretation by the secret FISA courts, which oversee the government’s use of mass surveillance behind closed doors.
“This is the second time Schiff has inserted dangerously bad policy to make sure Congress doesn’t know what it’s voting on,” Sean Vitka, a senior policy analyst at Demand Progress, told Motherboard. “There’s an information asymmetry here. But I think it’s fair to say that Schiff has been doing everything he can to make sure Congress doesn’t know if it’s reauthorizing warrantless surveillance or not.”
Among those dropping their support for the modified privacy measure is Sen. Ron Wyden (D-OR), who along with Steve Daines (R-MT) co-authored a similar privacy-protecting amendment in the Senate which failed by only one vote. The Wyden-Daines amendment was originally meant to be the template for the House’s privacy proposal, but House Speaker Nancy Pelosi allowed a vote on the House amendment on the condition that its authors negotiate with Schiff on the exact language.
“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden told Gizmodo in a statement on Tuesday.
Those who remain in support of the House amendment, which was co-sponsored by Reps. Zoe Lofgren (D-CA) and Warren Davidson (R-OH), claim it is an “outright prohibition” against warrantless searches of Americans’ internet activity.
“I’ve been working for more than 15 years to secure real reforms to Section 215 and FISA,” wrote Lofgren, in an emailed statement. “With this final provision included, Congress can finally pass a meaningful and bipartisan reform package to improve our country’s powerful surveillance programs.”
But those claims are contradicted by Schiff himself, who told the New York Times on Tuesday that the constraints are much narrower than its authors claim. Activists are worried about the ease with which the restrictions could be circumvented—for example, if the government demanded a list of every IP address that visited a website or watched a particular video on YouTube. Whether or not the amendment would prevent such surveillance is entirely dependent on whether the FBI considers a US-based IP address an indicator of a “US person”—something which the government has never made clear.
With the full bill set to receive a vote later tonight, activists are now joining Wyden in calling for Congress to vote down the House amendment as well as the underlying bill, which reauthorizes provisions of the Patriot Act.
“It’s not fair for Congress to act like they stopped warrantless surveillance if they didn’t,” said Vitka. “If you’re saying you can’t use Section 215 to get internet activity without a warrant, that should apply to everyone in the United States, plain and simple.”