On Tuesday morning, an amendment to a bill intended to protect browser and search history privacy was riding a wave of support from privacy advocates and lawmakers, just a day before the amendment was expected to go to a vote.
Then the full details of the proposed amendment were released, and by Tuesday night, support for the privacy protections imploded. The amendment’s downfall appeared to come from one line.
It all hinged on the phrase “United States persons.”
The amendment was intended for the USA Freedom Reauthorization Act, legislation that would restore surveillance powers from the Patriot Act that expired in March. Those powers included the ability for US agencies like the FBI and CIA to search through browser history without requiring a warrant.
Privacy advocates and lawmakers have been supporting changes to the new legislation to protect people from government surveillance. Your browsing history and search history can reveal a lot of sensitive information, and without protections, government agencies would be free to view it all without probable cause.
Supporters of government surveillance argue that the measures are necessary to defend the US from foreign threats.
“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,” House intelligence Committee Chairman Rep. Adam Schiff said in a statement.
The question is, where exactly to draw the line.
When Rep. Zoe Lofgren, a Democrat from California, and Rep. Warren Davidson, a Republican from Ohio, drafted their amendment to the USA Freedom Reauthorization Act, it was intended to prevent the US government from gathering logs of people’s search histories, websites visited or videos watched without first obtaining a warrant.
The amendment was drafted after a similar amendment proposed by Sen. Ron Wyden, a Democrat from Oregon, and Sen. Steve Daines, a Republican from Montana, failed to pass by one vote on May 13.
The Lofgren-Davidson amendment had many similarities to the Wyden-Daines amendment, but negotiations with Schiff caused a significant difference in the language, sources familiar with the new proposal said.
The 12th line of the Lofgren-Davidson amendment specifies that the privacy protections are only applied to “United States persons.” Privacy advocates interpreted that phrase to mean that undocumented people living in the US would still be vulnerable to widespread surveillance. Lofgren and Davidson’s office didn’t comment on the definition of “United States persons” in their amendment.
If the Lofgren-Davidson amendment passes without protections for undocumented immigrants residing in the US, it would mean up to 12 million people do not have privacy protections from the government looking to gather their search history.
That specific language has tanked its support.
“As written, the amendment would not prevent warrantless surveillance of internet search history and browsing history of individuals in the US,” American Civil Liberties Union senior legislative counsel Neema Singh Guliani said. “A clear bright-line rule prohibiting such surveillance is both consistent with the Fourth Amendment and critical to ensuring that the information of US citizens is not wrongly swept up.”
The original Wyden-Daines amendment did extend that protection, but it was taken out in the Lofgren-Davidson amendment.
Privacy rights group Fight for the Future had also turned around on the Lofgren-Davidson amendment after seeing the details from the final text.
“Mass government surveillance is fundamentally incompatible with democracy and basic human rights,” Fight for the Future’s deputy director Evan Greer said in a statement. “It shouldn’t matter where you’re from. Everyone should have the basic right to due process and to be free from unreasonable and warrantless government intrusion into their lives.”
The proposed amendment has also lost steam among lawmakers over how Schiff has interpreted its language. While Lofgren and Davidson wrote the amendment to be a blanket protection against surveillance, Schiff has interpreted that the legislation will only prevent warrantless searches against specific US citizens.
That change would mean that the FBI could still get logs of all visitors to websites or videos without a warrant — enabling a large dragnet while only preventing singled-out searches.
“The House Intelligence Committee chairman’s assertion that the Lofgren-Davidson amendment does not fully protect Americans from warrantless collection flatly contradicts the intent of Wyden-Daines, and my understanding of the amendment agreed to earlier today,” Wyden said in a statement on Tuesday.
Wyden’s withdrawing was first reported by Gizmodo.
Wyden is now calling for the House to vote on his original amendment rather than the Lofgren-Davidson amendment introduced on Tuesday. In a committee hearing on Wednesday morning, Lofgren and Davidson suggested the same.
“Some comments have been made suggesting there is ambiguity in this amendment,” Lofgren said. “If the committee wants to make sure there is no ambiguity, they could revert to the original request Mr. Davidson and I made on May 20 — a mirror of the Wyden-Daines amendment.”
The Wyden-Daines amendment failed in the Senate by one vote, and two senators who likely would have voted to support it were not able to because they weren’t there.
The Lofgren-Davidson amendment was originally identical to the Wyden-Daines amendment, but was changed after negotiations with Schiff, sources said. The amendment is still expected to go for a vote on Wednesday, but the added terms are likely to have gutted privacy protections for people’s browser histories.
“This is Rep. Schiff and intelligence hawks working overtime to protect the surveillance state status quo,” Davidson said in a statement. “Hopefully everyone will wake up and defend the Constitution. It’s time for the House to protect one of Americans’ most basic freedoms — the right to privacy.”