Senate Rejects Measure to Ban Warrantless Browser History Searches
The Senate failed to approve an amendment, 59-37, that would have banned warrantless searches of browsing and internet search data under Section 215 of the Patriot Act. Offered by Ron Wyden, D-Ore., and Steve Daines, R-Mont., the amendment fell one vote short of 60 votes required to pass, with 10 Democrats and 27 Republicans voting against.
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Thirty-four Democrats, 24 Republicans and one independent voted yes Wednesday. Lamar Alexander, R-Tenn.; Ben Sasse, R-Neb.; Patty Murray, D-Wash.; and Bernie Sanders, I-Vt., didn’t vote.
Majority Leader Mitch McConnell, R-Ky., urged opposition to three amendments, offering his own from the floor. Wyden said the amendment would make the situation “even worse,” giving congressional authorization for warrantless collection of browser and search data.
McConnell blamed the House for failing to take up the short-term extension passed in the Senate. Because the authority lapsed, surveillance tools are dark, McConnell said. Experts recently told us the impact is insignificant because intelligence agencies can continue using authorities for investigations based on facts that occurred before March 15 (see 2003300055).
Wyden and Daines said browsing and internet search history are some of the most personal and private data. Government has the power to snoop on Americans’ internet activity 24 hours a day when they aren't suspected of wrongdoing, Wyden said, arguing it's “reading minds.” The simple solution is to require a warrant, he said. He blamed McConnell for blocking the bipartisan effort.
Officials shouldn’t have access without a warrant, Daines said, arguing this is about protecting basic Fourth Amendment rights. The House bill has a prohibition on collecting cellsite location data under Section 215, Daines said, noting the Supreme Court’s Carpenter (see 1903210050) ruling government needs a warrant. The Wyden-Daines amendment would have extended that prohibition to include browsing data, Daines said, arguing the Patriot Act and the Foreign Intelligence Surveillance Act were used to “trample the civil liberties.”
Wyden and Daines voiced support for the Lee-Leahy amendment, which clarifies FISA court amici guidelines. Votes on remaining amendments, including one from Sen. Rand Paul, R-Ky. (see 2005120051), are expected Thursday.
The FISA process needs updating, said Patrick Leahy, D-Vt., and Mike Lee, R-Utah, citing the apparent intelligence agency failures detailed in a recent DOJ inspector general report (see 2003310068). The amendment would expand amici participation in cases involving “significant First Amendment issues,” Leahy said. Opponents argue the amendment would hamper FISA court ability to approve applications quickly, which is “simply untrue,” Lee said. John Cornyn, R-Texas, spoke of the need to end the controversial call detail records program, citing the program’s apparent lack of value (see 2002260061).