This month, a majority of the GOP-controlled Senate voted for an amendment barring the federal government from spying on Americans’ internet browsing and search histories without a warrant. It received bipartisan support and failed by just one vote.
Yet the Democratic-controlled House has decided to introduce the amendment with a key change that offers fewer protections. On Tuesday, the Democratic sponsor of the Senate amendment, Ron Wyden of Oregon, pulled his support for the House provision, and progressive privacy advocates sent a letter to members of the House calling on them to vote against the amendment and the larger bill to reauthorize lapsed provisions of the Foreign Intelligence Surveillance Act.
Complicating matters even further, President Donald Trump signaled his opposition to the House legislation and his Justice Department recommended he veto it.
The turn of events has threatened to scuttle reauthorization of the law and left many progressive advocates frustrated that the Democratic-controlled House changed a provision that received such widespread support in the Senate.
The House version of the amendment, sponsored by Reps. Zoe Lofgren (D-Calif.) and Warren Davidson (R-Ohio), changed the Senate proposal, sponsored by Wyden and Sen. Steve Daines (R-Mont.), in one critical way: The House version would limit the restrictions around internet surveillance to U.S. persons, thereby allowing warrantless searches for non-U.S. persons’ data. Lofgren said the change was made in order to secure a vote on the amendment in the House, where Democratic leadership has been reluctant to pursue privacy measures so far — and, in earlier negotiations, explicitly rejected this proposal to require warrants for searching internet browsing history.
Privacy advocates are concerned this change undercuts the intent of the provision altogether, giving the federal government a loophole to continue spying on Americans’ internet browsing activity without explicit reason.
Wyden said he could no longer support the House version of the amendment because of a statement Rep. Adam Schiff (D-Calif.), chairman of the House Intelligence Committee, made to The New York Times that Wyden said undermined the measure’s purpose. Specifically, the senator said Schiff’s reading of the amendment allowed for the possibility of warrantless government surveillance of Americans’ internet browsing history so long as that surveillance was not deliberate.
“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 said in a statement.
A spokesman for Schiff declined to comment.
On Wednesday, Lofgren called this interpretation of her amendment “absurd.”
For the government to continue surveillance without a warrant, “the FISA court would have to adopt a reading of this amendment that says, ‘Even though you know for a fact that asking for the IP addresses of everyone that visits a website is going to capture substantial U.S. persons’ web-browsing information, since you didn’t say you wanted U.S. persons’ web-browsing information, then it doesn’t count.’ That doesn’t make any sense at all. It’s an absurd interpretation,” Lofgren said during a meeting with the House Rules Committee, which ultimately decides which amendments get a vote.
She said while both she and Davidson think the ideal path forward would be for the House to take up the Senate amendment, their version would be effective, too.
“Let’s not be mistaken: This amendment does offer real protections. ... This is a blanket prohibition on collecting the web browsing and search history of U.S. persons,” the congresswoman said.
The last-minute drama has left the House’s vote on FISA reauthorization in jeopardy. Democrats were expecting to pass the legislation on a bipartisan basis this week, but with Republicans balking, House Speaker Nancy Pelosi (D-Calif.) will need to figure out a way to do it on her own.
“We will act upon it today one way or another,” Pelosi said of the bill at a Wednesday press conference.