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Analysis

Surprising Senate Vote Signals New Hope for Surveillance Reform

Measures to protect Americans’ privacy received strong bipartisan support.

May 16, 2020

This was a good week for civil liber­ties in the Senate. Lawmakers assembled to vote on three amend­ments that would strengthen privacy protec­tions in the USA Free­dom Reau­thor­iz­a­tion Act, a bill passed by the House in March to renew certain provi­sions of the Foreign Intel­li­gence Surveil­lance Act (FISA). Even though only one amend­ment passed, two of them did far better than expec­ted, paving the way for the House to pass a better bill — and for Congress to enact stronger privacy protec­tions in the future.

Back­ground: a cycle of over­reach and reform

The imme­di­ate purpose of the bill is to reau­thor­ize three provi­sions of FISA that were created or amended by the USA Patriot Act follow­ing the 9/11 attacks. The best known of these is Section 215, which allows the govern­ment to get an order from the secret Foreign Intel­li­gence Surveil­lance Court (known as the FISA court) to obtain “any tangible thing,” as long as it can show that the “thing” is relev­ant to a foreign intel­li­gence or inter­na­tional terror­ism invest­ig­a­tion. This is an extraordin­ar­ily low stand­ard that enables the govern­ment to collect Amer­ic­ans’ personal inform­a­tion even if they are not suspec­ted of any wrong­do­ing.

In 2013, as a result of Edward Snowden’s disclos­ures, the public learned that the NSA had secretly been using Section 215 to collect Amer­ic­ans’ phone records in bulk. After a federal appeals court found the program to be illegal, Congress passed the USA Free­dom Act, which sought to prohibit bulk collec­tion under Section 215 and other FISA author­it­ies. But Congress also created a scaled-down version of the phone records program, under which the NSA could collect the phone records not just of suspec­ted terror­ists, but anyone who had called or been called by them.

In 2018, the NSA announced that it would delete three years’ worth of phone records, because it had been regu­larly — albeit unin­ten­tion­ally — collect­ing inform­a­tion it was not author­ized to have. Several other FISA-related scan­dals followed. Most notably, the Justice Depart­ment’s inspector general found that the govern­ment’s applic­a­tions for FISA court warrants to conduct surveil­lance of Amer­ic­ans and others inside the United States were riddled with errors and omis­sions.

These revel­a­tions showed that major changes to the law were neces­sary to protect Amer­ic­ans’ civil liber­ties. The bill passed by the House in March, however, fell disap­point­ingly short. Its most signi­fic­ant reform was ending the phone records program, but that was almost a fore­gone conclu­sion — the govern­ment already had stopped using the program, conclud­ing that its bene­fits were outweighed by its costs. Beyond that, most of the reforms included in the bill either were extremely modest or were under­cut by broad excep­tions.

Why was the bill so unam­bi­tious? In short, its spon­sors were concerned that a bill with more mean­ing­ful reforms would be unable to pass in either the House or the Senate. Thus, when it became clear that a markup in the House Judi­ciary Commit­tee would result in the adop­tion of amend­ments to strengthen civil liber­ties protec­tions, the bill’s spon­sors canceled the sched­uled markup, and the bill was rushed to a floor vote with no debate and no chance to vote on amend­ments.

In the Senate, however, lawmakers on both sides of the aisle insisted on the oppor­tun­ity to offer amend­ments, and Major­ity Leader Mitch McCon­nell (KY) was forced to accede to this request. Senat­ors voted this week on three amend­ments to bolster privacy protec­tions in the bill, and in two cases, the results were surpris­ing.

The Wyden-Daines amend­ment: requir­ing warrants for web brows­ing and search history

The first amend­ment, offered by Sens. Ron Wyden (D-OR) and Steve Daines (R-MT), would have prohib­ited the use of Section 215 to collect Amer­ic­ans’ inter­net search history and web brows­ing records. This is some of the most private inform­a­tion imagin­able, and as Senator Wyden poin­ted out, protect­ing it has become even more import­ant now that most Amer­ic­ans are subject to a shut-down order and are “living their lives online.”. Under the Wyden-Daines amend­ment, the govern­ment would have been required to get a prob­able cause warrant from the FISA court or a regu­lar court to obtain this inform­a­tion. It would no longer have the easy access afforded by the weak “relev­ance” stand­ard.

In talk­ing points circu­lated among Capitol Hill offices, McCon­nell argued — falsely — that the Wyden-Daines amend­ment would prohibit the govern­ment from acquir­ing any inter­net data. He offered hypo­thet­ic­als inten­ded to show that easy access to inter­net search history was crit­ical to prevent­ing terror­ist attacks. Such scare tactics have a strong track record of success. Moreover, while Congress is occa­sion­ally will­ing to strengthen over­sight and trans­par­ency of intel­li­gence activ­it­ies, it almost never raises the substant­ive legal stand­ard for collec­tion. Observ­ers were skep­tical of the amend­ment’s chances.

This time, however, McCon­nell might have over­reached. His talk­ing points conveyed the impres­sion that the govern­ment is actively engaged in the warrant­less collec­tion of Amer­ic­ans’ inter­net search history. This did not sit well with progress­ive Demo­crats or with Repub­lic­ans newly attuned to privacy concerns in the wake of the botched Carter Page applic­a­tions. Sixty votes were needed for passage; the final tally ended up being an achingly close 59–37, with 10 Demo­crats voting no and 24 Repub­lic­ans voting yes. At least two of the senat­ors who were not present in the Capitol and there­fore did not vote — Sens. Bernie Sanders (I-VT) and Patty Murray (D-WA) — would likely have voted for the amend­ment. For civil liber­ties advoc­ates, it was a moral victory and a bitter defeat at the same time.

The Leahy-Lee amend­ment: empower­ing court-appoin­ted advoc­ates and increas­ing accur­acy

Next up was an amend­ment offered by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) to improve the work­ings of the FISA court. The USA Free­dom Act had estab­lished a panel of experts who could appear before court to present perspect­ives and argu­ments other than the govern­ment’s. The act created a presump­tion that these experts would parti­cip­ate in cases involving novel or signi­fic­ant inter­pret­a­tions of the law. The Leahy-Lee amend­ment expands that presump­tion to include cases involving signi­fic­ant First Amend­ment concerns; cases involving new tech­no­lo­gies; requests to approve entire surveil­lance programs; and sens­it­ive matters involving polit­ical, reli­gious, or journ­al­istic activ­ity. In addi­tion, it gives these experts access to all mater­i­als before the court in any matter in which they parti­cip­ate. These meas­ures would promote mean­ing­ful adversarial test­ing of the govern­ment’s argu­ments in those cases with the highest stakes for Amer­ic­ans’ privacy.

The Leahy-Lee amend­ment also includes provi­sions to guard against the submis­sion of flawed or incom­plete FISA applic­a­tions. It requires the govern­ment to disclose to the court any inform­a­tion or mater­i­als that go against its case. The attor­ney general must adopt “accur­acy proced­ures,” designed to ensure that every applic­a­tion is correct and complete. And the DOJ inspector general must report to Congress and make public the results of the depart­ment’s internal accur­acy audits.

Given the amend­ment’s focus on proced­ural reforms rather than substant­ive limits on collec­tion, it was expec­ted to outper­form Wyden-Daines. But few observ­ers expec­ted it to sail through as smoothly as it did: the final vote count was 77–19, indic­at­ing an unpre­ced­en­ted level of bipar­tisan support for enhan­cing FISA’s privacy protec­tions.

The Paul amend­ment: remov­ing Amer­ic­ans from the FISA system

The third amend­ment, offered by Sen. Rand Paul (R-KY), would have prohib­ited the govern­ment from using FISA to target Amer­ic­ans and required the govern­ment to obtain a regu­lar crim­inal warrant instead. The amend­ment also would have barred the govern­ment from using inform­a­tion collec­ted under either FISA or Exec­ut­ive Order 12333 (which governs over­seas foreign intel­li­gence surveil­lance) against Amer­ic­ans in invest­ig­a­tions or court proceed­ings.

As expec­ted, this amend­ment — which would funda­ment­ally change the legal frame­work for foreign intel­li­gence surveil­lance — received little support, with only 11 senat­ors voting in favor. Senat­ors might have had differ­ent reas­ons for oppos­ing it, however. Many no doubt believe that the govern­ment should not be held to the strict stand­ards of the crim­inal justice system when collect­ing foreign intel­li­gence. But some were likely concerned that the govern­ment, with FISA taken off the table, would fall back on claims of inher­ent exec­ut­ive author­ity to conduct surveil­lance. Indeed, Sen. Richard Burr (R-NC) sugges­ted as much during an earlier phase of the debates. With all its flaws, FISA is prefer­able to a system of surveil­lance that lacks any congres­sional or judi­cial over­sight what­so­ever.

Look­ing forward: the House and beyond

After the Paul amend­ment failed, senat­ors voted 80–16 to pass the bill as amended by Leahy-Lee. It now goes back to the House. When the House votes this time, though, the polit­ical context will have shif­ted signi­fic­antly — and so should the assump­tions under­ly­ing the vote. The House bill was extremely conser­vat­ive in its reforms in part because its spon­sors feared that more robust legis­la­tion could not pass. The Senate vote makes clear that it can. The Senate’s support for the protec­tions in the Leahy-Lee bill, in partic­u­lar, was over­whelm­ing. There is no reason for the House to reject this import­ant change.

Moreover, we now know that a substan­tial major­ity of senat­ors — more than 60 — are in favor of a warrant require­ment for collect­ing inter­net search history and web brows­ing records. Their support mirrors the intu­it­ive sense, shared by most Amer­ic­ans, that inter­net activ­ity is highly personal and should not be read­ily avail­able to the govern­ment. The House should adopt the Wyden-Daines amend­ment when it considers the bill.

Finally, the Senate’s votes this week bode well for broader reforms in the future. In the years after 9/11, concerns about the civil liber­ties impact of surveil­lance were largely limited to members on the progress­ive left and liber­tarian right. But privacy is increas­ingly becom­ing a sali­ent issue for members across the polit­ical spec­trum. There is much more than can and should be done to protect Amer­ic­ans’ rights. Web brows­ing records, for instance, are not the only kinds of records that reveal highly sens­it­ive inform­a­tion — think about medical records or biomet­ric data. And the most sens­it­ive inform­a­tion of all — commu­nic­a­tions content — can be accessed by the govern­ment without a warrant if “incid­ent­ally” collec­ted under Section 702 of FISA.

In short, we are long over­due for a hard look at the many ways in which our surveil­lance laws fail to safe­guard Amer­ic­ans’ privacy. The Senate’s actions this week provide some hope that we could see more progress on this front in the not-too-distant future.