US lawmakers get a second shot at forcing FBI agents to obtain a warrant before they leaf through web histories

US lawmakers will get another vote on whether the FBI must get a warrant before agents can search Americans’ search and web-browsing histories.

House reps Zoe Lofgren (D-CA) and Warren Davidson (R-OH) led the effort over the Memorial Day weekend to propose tacking an amendment onto the proposed USA FREEDOM Act, which is before the House of Representatives. The USA FREEDOM Act, if renewed as it stands, reauthorizes various USA PATRIOT Act surveillance programs.

One cause for concern is the lack of requirement, in section 215 of the legislation, for the Feds to get a search warrant before requesting access to people’s internet activities from their ISPs.

Lofgren et al want the House to vote on amending the USA Freedom Act to include that requirement. The act has already passed the Senate without the warrant requirement, though if the House succeeds in tacking on the caveat, the Senate will have to consider it, too.

“After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 that protects Americans’ civil liberties,” Lofgren said in a statement on Tuesday.

“Our internet activity opens a window into the most sensitive areas of our private life, and, this week, Representatives will be able to vote to prevent the government from using Section 215 to collect the websites we visit, the videos we watch and the searches we make.”

The House vote on the amendment will follow a similar attempt to add a warrant requirement in the Senate earlier this month, which fell by a single vote, and caused uproar. One of the authors of that proposed proviso in the Senate, Ron Wyden (D-OR), praised Lofgren for getting the issue on the floor of Congress again:

“I applaud Representative Lofgren for securing a vote on my amendment to ban warrantless collection of Americans’ internet activity,” the senator said. “There are few things more private than where a person goes on the internet, or what they search for online, so the government must obtain a warrant to get that information. I urge the House to pass it, and the Senate to follow suit.”

Secret interpretations

The unexpected expansion of section 215 spying powers to include everyone’s search and browsing histories without requiring a warrant continues a long back-and-forth over the USA PATRIOT Act where the Feds have repeatedly interpreted the law, often in secret, to allow for a range of activities that have worried privacy advocates, civil liberties groups, and lawmakers.

Those powers have been repeatedly scaled back, sometimes after they have been deemed unconstitutional; sometimes as part of the required reauthorization of the law every few years. But they often return either through new, secret interpretations of the law or late additions to reauthorization bills.

“For too long, Americans’ most private information has been compromised by vague laws and lax privacy protections,” said Davidson.

“With the vote on the Lofgren-Davidson Amendment to FISA reform this week, we take an important step toward restoring Americans’ long-neglected Fourth Amendment rights. Protecting Americans’ internet browser searches from warrantless surveillance is a modest, though important first step.”

Section 215 of the USA PATRIOT Act has been by far the most controversial clause thanks to its purposefully broad wording. Earlier this month, Wyden warned that “it is so vague and so broad [that] the government can collect just about anything so long as it is relevant to an investigation.”

Uncle Sam’s own Privacy and Civil Liberties Oversight Board recently said in a report a spying program under that section had cost US taxpayers $100m – and resulted in just one useful lead in four or more years.

Section 215 is the same section that Edward Snowden revealed had been interpreted wildly by g-men to grant them the right to seize call logs and browsing records directly from ISPs and telcos: an interpretation that was subsequently found to be unconstitutional.

In addition, the NSA has twice shuttered one part of its surveillance operation under section 215 because it ended up providing the agency with millions of records it did not have a legal right to see or store.

Cat-and-mouse

But those attempting to undercover serious crimes are loath to let such a powerful tool disappear, and so continue to play a cat-and-mouse battle with those concerned about individuals’ privacy.

If it passes in the House and through the Senate into law, the amendment would require the Feds to show probable cause to a court before they can demand access to someone’s web history – meaning they would have to prove to a judge that they had good reason to suspect the person of a crime and that their browser logs would help in the investigation of that alleged occurrence.

The current version of the proposed law also expands the ability of the authorities to track and wiretap people who change telephone numbers, as well as tail someone under the “lone wolf” theory that the individual is single-handedly plotting a terror attack.

On the protections side, the Senate approved an amendment to improve oversight of the secretive Foreign Intelligence Surveillance Court (FISC): the court would be required to appoint a neutral third-party who would be expected to observe any cases in front of the court that involve a “sensitive investigative matter.” That third-party would also be allowed to raise any issue whenever they wished with the court, and would have the authority to see all documents relating to a given application. ®

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