Privacy Bill to Protect Americans’ Browsing and Search Histories from Warrantless Search Fails: Data Privacy Trends

As Maxwell Smart would say, “missed it by that much”.  On Wednesday, an effort to protect Americans’ browsing and search histories from warrantless government surveillance failed by a single vote in the Senate. The privacy measure, sponsored by Sen. Ron Wyden (D-OR) and Sen. Steve Daines (R-MT) got 59 votes, one vote fewer than was needed to overcome a filibuster.

As reported by Ars Technica (Senate passes spying bill without search and browsing history protections, written by Timothy B. Lee), the vote was over a section of federal surveillance law that was originally part of the USA Patriot Act in 2001. That provision, known as Section 215, gave the FBI the power to obtain “any tangible thing,” including “books, records, papers, documents, and other items,” without a warrant. The provision was only supposed to be used for foreign intelligence investigations, not ordinary criminal investigations. Civil liberties groups have long criticized it for its breadth and weak judicial oversight.

Section 215 expired back in March, and the Senate is working on legislation to re-authorize it. The current Senate draft prohibits the FBI from using the provision to obtain cell phone location data—though the Supreme Court has already ruled that this information is constitutionally protected (in Carpenter v. U.S. back in 2018), so this may have little practical impact.

On Wednesday, Wyden and Daines offered an amendment to the reauthorization bill that would stop the FBI from obtaining “Internet website browsing information or Internet search history information” using the Patriot Act. That would force the agency to use other processes—with stricter judicial oversight—to obtain that kind of information.

A majority of senators—59 out of 100—supported the amendment. But under the Senate’s “dysfunctional” rules, it takes a 60-vote supermajority to end debate on a proposal like this and move to a vote. So even though a majority of senators supported the amendment, it did not become part of the reauthorization bill.

Four senators—Lamar Alexander (R-Tenn.), Patty Murray (D-Wash.), Bernie Sanders (I-Vt.), and Ben Sasse (R-Neb.) missed the vote. The amendment would have passed if any of them had been there to vote “yes.”

Whoops.  Who says it’s the era of data privacy?  Not the Senate, at least not this week.

So, what do you think?  Are you upset the privacy bill didn’t pass?  Or are you glad that government entities like the FBI will still have this power?  Please share any comments you might have or if you’d like to know more about a particular topic.

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