In a shameful vote this week as part of an extension of the dreaded and controversial Patriot Act, the Senate handed William Barr and the Trump administration the ability to spy on Americans’ web browsing and internet search histories without a warrant.
The vote on a bipartisan amendment to protect this information from government surveillance sparked immediate outrage online – and deservedly so. Our web browsing and search histories contain the most intimate personal information. Any administration – let alone the draconian Trump justice department – should be required to comply with the fourth amendment before trawling through it.
Depressingly, the amendment failed to pass the 60-vote threshold by exactly one vote, 59-37, with two Democratic caucus members, including Bernie Sanders, failing to show up. “As far as I can tell we lost because there were some people absent,” Ron Wyden, who co-sponsored the bill with Republication senator Steve Daines, told Politico.
Even worse, 10 Democrats – including Dianne Feinstein, Sheldon Whitehouse and Mark Warner – sided with Mitch McConnell and the Trump administration and voted against the provision. Time and again, when it comes to privacy and civil liberties issues some Democrats have consistently sided with the Trump administration, despite portraying the president as lawless and unaccountable on a variety of subjects. It never ceases to be infuriating.
But lost in the mix of this damaging loss for privacy, and perhaps even because of it, was some very good news. A second privacy-focused amendment to the Patriot Act – one that garnered far less coverage but is potentially even more substantive – did pass overwhelmingly on Wednesday night. Because the substance of the amendment was much harder to fit into a headline, it received a fraction of the attention. But it may be because the vote on web browsing histories sparked immediate outrage on Twitter, politicians from both parties felt the need to accept it.
The amendment, known as the Leahy-Lee amendment – named after its bipartisan co-sponsors Patrick Leahy and Mike Lee – reforms the secretive foreign intelligence surveillance (Fisa) court in a significant way. The Fisa court, which authorizes national security and foreign intelligence surveillance on US soil, first came to the general public’s attention during the Snowden disclosures.
The court, for decades, would listen to the government’s side of an argument for new surveillance powers in complete secrecy, and almost never heard from the civil liberties perspective. The court was known to rubber-stamp virtually anything the FBI or NSA asked for. This one-sided system, as the New York Times reported at the time, carved out classified exceptions to the fourth amendment and “created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans” without the public knowing about it.
After the Snowden disclosures, Congress was forced to create an amicus curiae – or “friend of the court” – position, which at very limited times and at the court’s discretion, would be allowed to resist the government’s arguments. Even though the position was extremely restricted, over the past several years, it has been shown to work on the few occasions it’s been used.
The Leahy-Lee amendment significantly strengthens the amicus position, giving the court’s civil liberties representative much more latitude to access classified information and broadens their ability to weigh in on virtually all cases that may infringe upon the civil liberties of Americans.
And here’s where it gets interesting. The House passed a different version of a Patriot Act extension back in March, so now the Senate’s version has to go back to the House, so the bills can match up. It gives privacy advocates another opportunity to get through even more robust changes, like the Wyden amendment protecting our Google search data.
This issue is not the same partisan fight that we have become so accustomed to in Washington. Instead of a Republican-Democrat split, like so many issues in recent years, the fight over privacy and the Patriot Act has pitted a bipartisan left-right coalition against the moderate, pro-national security state establishment of both parties. Many Republicans crossed the line to vote with the majority of Democrats, while 10 Democrats sided with Barr and the Trump administration to hand them this power.
While it’s incredibly depressing Congress has failed to protect online privacy as it has become this generation’s seminal issue, the fight is not over. Especially if representatives hear loud and clear how much this issue means to Americans.
The US Senate voted to let Trump spy on your search history. But all is not lost
Trevor Timm
The amendment, which 10 Democrats voted in favor of, can still be fought against. And we must
Photograph: Shawn Thew/EPA
In a shameful vote this week as part of an extension of the dreaded and controversial Patriot Act, the Senate handed William Barr and the Trump administration the ability to spy on Americans’ web browsing and internet search histories without a warrant.
The vote on a bipartisan amendment to protect this information from government surveillance sparked immediate outrage online – and deservedly so. Our web browsing and search histories contain the most intimate personal information. Any administration – let alone the draconian Trump justice department – should be required to comply with the fourth amendment before trawling through it.
Depressingly, the amendment failed to pass the 60-vote threshold by exactly one vote, 59-37, with two Democratic caucus members, including Bernie Sanders, failing to show up. “As far as I can tell we lost because there were some people absent,” Ron Wyden, who co-sponsored the bill with Republication senator Steve Daines, told Politico.
Even worse, 10 Democrats – including Dianne Feinstein, Sheldon Whitehouse and Mark Warner – sided with Mitch McConnell and the Trump administration and voted against the provision. Time and again, when it comes to privacy and civil liberties issues some Democrats have consistently sided with the Trump administration, despite portraying the president as lawless and unaccountable on a variety of subjects. It never ceases to be infuriating.
But lost in the mix of this damaging loss for privacy, and perhaps even because of it, was some very good news. A second privacy-focused amendment to the Patriot Act – one that garnered far less coverage but is potentially even more substantive – did pass overwhelmingly on Wednesday night. Because the substance of the amendment was much harder to fit into a headline, it received a fraction of the attention. But it may be because the vote on web browsing histories sparked immediate outrage on Twitter, politicians from both parties felt the need to accept it.
The amendment, known as the Leahy-Lee amendment – named after its bipartisan co-sponsors Patrick Leahy and Mike Lee – reforms the secretive foreign intelligence surveillance (Fisa) court in a significant way. The Fisa court, which authorizes national security and foreign intelligence surveillance on US soil, first came to the general public’s attention during the Snowden disclosures.
The court, for decades, would listen to the government’s side of an argument for new surveillance powers in complete secrecy, and almost never heard from the civil liberties perspective. The court was known to rubber-stamp virtually anything the FBI or NSA asked for. This one-sided system, as the New York Times reported at the time, carved out classified exceptions to the fourth amendment and “created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans” without the public knowing about it.
After the Snowden disclosures, Congress was forced to create an amicus curiae – or “friend of the court” – position, which at very limited times and at the court’s discretion, would be allowed to resist the government’s arguments. Even though the position was extremely restricted, over the past several years, it has been shown to work on the few occasions it’s been used.
The Leahy-Lee amendment significantly strengthens the amicus position, giving the court’s civil liberties representative much more latitude to access classified information and broadens their ability to weigh in on virtually all cases that may infringe upon the civil liberties of Americans.
And here’s where it gets interesting. The House passed a different version of a Patriot Act extension back in March, so now the Senate’s version has to go back to the House, so the bills can match up. It gives privacy advocates another opportunity to get through even more robust changes, like the Wyden amendment protecting our Google search data.
This issue is not the same partisan fight that we have become so accustomed to in Washington. Instead of a Republican-Democrat split, like so many issues in recent years, the fight over privacy and the Patriot Act has pitted a bipartisan left-right coalition against the moderate, pro-national security state establishment of both parties. Many Republicans crossed the line to vote with the majority of Democrats, while 10 Democrats sided with Barr and the Trump administration to hand them this power.
While it’s incredibly depressing Congress has failed to protect online privacy as it has become this generation’s seminal issue, the fight is not over. Especially if representatives hear loud and clear how much this issue means to Americans.
Trevor Timm is executive director of the Freedom of the Press Foundation