Key House lawmakers reach deal on surveillance law amendment

by Chris Mills Rodrigo - 05/26/20 1:15 PM ET

Key House lawmakers have struck a deal on an amendment that would block law enforcement from accessing Americans’ web browsing history without a warrant.

The amendment from Reps. Zoe Lofgren (D-Calif.) and Warren Davidson (R-Ohio) to legislation reauthorizing surveillance programs set to be voted on this week was negotiated over the three-day Memorial Day weekend after it was confirmed Friday that leadership would allow it to be considered.

Lofgren said in a statement Tuesday that after “extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties.”

“For too long, Americans’ most private information has been compromised by vague laws and lax privacy protections,” Davidson, the amendment’s Republican co-sponsor, said in a statement to The Hill.

“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,” he added. “Protecting Americans’ internet browser searches from warrantless surveillance is a modest, though important first step.”

The version of the amendment unveiled Tuesday would require a Foreign Intelligence Surveillance Act (FISA) warrant to be obtained before gathering internet activity if the government is not sure if the subject is a U.S. person but might be, according to Lofgren’s office.

It would also compel the government to guarantee that no U.S. person’s IP addresses or identifiers would be disclosed before ordering a service provider to provide a list of everyone who has visited a particular website.

If an order could result in a U.S. person’s web browsing or search history, the government would be required to obtain a warrant narrowly focused on the subject of the warrant.

The amendment is similar to the one brought by Sens. Steve Daines (R-Mont.) and Ron Wyden (D-Ore.) during debate in the Senate on reauthorizing the USA Freedom Act.

That effort fell just one vote short of the 60-vote threshold needed to pass. Several senators who were expected to vote in favor were not present for the session.

The version of the Senate bill without the Daines-Wyden amendment was approved 80-16 earlier this month, sending it back to the House.

Wyden praised the Lofgren-Davidson amendment Tuesday.

“The language announced today is clear: the government cannot collect records that include the web browsing or internet searches of U.S. persons pursuant to Section 215 of the PATRIOT Act,” the Oregon senator said in a memo.

“As the overwhelming bipartisan majority of the U.S. Senate has demonstrated, Americans do not want the government looking at the websites they visit, the YouTube videos they watch and the internet searches they conduct without a warrant.”

The amendment is crucially supported by Rep. Adam Schiff (D-Calif.).

The chairman of the House Intelligence Committee and supporters of the amendment — including Lofgren and Wyden — were locked in negotiations over the language of the amendment all weekend.

A source familiar with those negotiations told The Hill that earlier versions of the text offered by the California lawmaker included a loophole that would allow significant collection of American web browsing data to continue.

Those versions would not require a warrant if it was not known that an American was the sole user of an IP address, according to the source, essentially shifting presumption toward not needing a warrant.

That could result in Americans using public Wi-Fi networks or virtual private networks (VPNs) having their information gathered without a warrant.

Schiff and Lofgren also worked together to add the specification of U.S persons to the Wyden-Daines amendment, which would have required a warrant for collection of any individual’s web browsing data, according to Schiff’s office.

“Our nation continues to face an array of threats – whether from foreign intelligence services or terror organizations – and we need to ensure that the intelligence community retains the authorities needed to protect our country, while providing robust protections of Americans’ civil liberties,” Schiff said in a statement Tuesday.

“The revised amendment would prevent use of FISA’s business records provision to seek to obtain a U.S. person’s internet browsing and search history information.”

Jake Laperruque, senior counsel at Project on Government Accountability, told The Hill that narrowing the warrant requirement to U.S. persons could be “problematic.”

“There’s probably going to be a lot of times when we don’t know, especially at the collection stage, whether or not we’re dealing with an American – what do we do when we don’t know whether or not this protection applies?” he said, adding that the government has historically assumed lower warrant obligations for surveillance when given the option.

A spokesperson for Schiff did not immediately respond to a request for comment.

The amendment is scheduled to be voted on in the Rules Committee on Wednesday morning. According to a Democratic aide, floor votes on reauthorizing the surveillance programs are expected later that evening.

If the amendment is successfully attached, the bill would return to the Senate for consideration.

ACLU Senior Legislative Counsel Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union, raised similar concerns about the addition of U.S. persons in the Lofgren-Davidson amendment.

“This amendment is far weaker than the original amendment led by Senators Wyden and Daines that received overwhelming support in the Senate – and its sponsors should fix its massive deficiencies,” she said. “As written, the amendment would not prevent warrantless surveillance of internet search history and browsing history of individuals in the U.S.”

–This report was updated at 4:52 p.m.