On May 13, the Senate failed to pass an amendment to the “Freedom Act” that would have required a search warrant for law enforcement to access a person’s browser information or internet search history.

Freedom Reauthorization

The Foreign Intelligence Surveillance Act (FISA) was passed in 1972 to create rules for U.S. surveillance. After the September 11 attacks it was amended drastically with the Patriot Act, and when that expired in 2015 the Freedom Act was passed. Many of the components of the Patriot Act were retained in the Freedom Act, though it also includes some stricter limits on how American’s data can be collected by the Government. The Freedom Act is currently being reauthorized and extended to 2023.

Amendment 1583 would have changed Section 215 of the law and required Government agencies to go through the process of getting a warrant before accessing someone’s internet search history or browsing information. Currently the law allows for the filing of an application in order to obtain the information, it does not require that probable cause be established.

The amendment was introduced by Senator Ron Wyden (D-OR) and Senator Steve Daines (R-MT). But in spite of bipartisan support it fell one vote short of passing the Senate, with 89 ayes and 37 nays. Senator Bernie Sanders (D-VT) was one of four Senators who were absent from the vote. Some notable “no” votes included Senate Majority Leader Mitch McConnell (R-KY), Mitt Romney (R-UT), and Marco Rubio (R-FL). Ten Democratic Senators also voted against the measure.

Section 215

Section 215 of the Patriot Act came under public scrutiny in 2013 when whistle blower Edward Snowden revealed that the Government was interpreting the language of the law very broadly and using it as justification for mass surveillance and data collection of U.S. citizens. This was not the intent of the Act according to the author but so far attempts to reign in the practice have met with limited success.

In his floor speech about this amendment one of the introducers, Senator Daines mentioned Section 215 and noted that “The warrantless collection of Americans’ web browsing history offers endless opportunities for abuse.” Daines also noted the standard rationale for this type of warrantless collection of data, that in certain cases getting a warrant is too time consuming and that the government may need the data before a warrant can be obtained. He addressed this by explaining “But without web browsing history, there is still plenty of information still available to the government without a warrant. Phone and email metadata, subscription data, other business records. But the big picture response to this argument is that it is Congress’s responsibility to determine when some information is so sensitive that it requires a warrant. In this very bill, Congress has done that with regard to geolocation information. Digital tracking of innocent Americans demands the same protections.”

Safety and Freedom

Search and browsing history are something that many people consider to be private, in fact search engines and browsers have privacy settings to keep these things even more private, even from people who share devices. Allowing government agencies to continue to access this data does not seem aligned with a sense of freedom. And it’s important to keep in mind that this is not a theoretical issue, the Government routinely accesses this type of data now. Googles Chrome’s most recent Privacy Report showed that under FISA they received between 0 and 499 requests for non-content metadata, which can include “the “from” and “to” fields in an email header and the IP addresses associated with a particular account.” Google and other browsers aren’t allowed to give additional details on exactly what data the government requests, they also don’t have information on the reason for the request, or what people’s data is being used for.

The Patriot Act was passed after an unprecedented attack on America and was intended to give the Government the tools it needed to keep Americans safe from a new kind of threat. Now, with people living more and more of their lives online, a Government that has unfettered access to people’s digital lives does not feel safer. Especially when the Government is deeply fractured along political lines and the current leader has shown himself to be deeply vindictive, petty, and without regard for the truth. This failed amendment to the Freedom Act seems like a missed opportunity to make Americans safer and more free.