In an era in which “Google it!” has become an unofficial national motto, your web browsing history can reveal a lot about your most intimate interests and activities, from medical issues to political opinions to romantic preferences.
Yet under the “business records” provision of the Patriot Act enacted after 9/11, the government may obtain such sensitive information as part of a foreign intelligence or counterterrorism investigation on the flimsiest of grounds: that the information is likely to be “relevant” to a national security investigation.
The House of Representatives will soon vote on reauthorizing the “business records” provision and two other parts of the Foreign Intelligence Surveillance Act that expired on March 15. It can and should take an important step toward shoring up our privacy by adopting a reform that was introduced in the Senate but failed to pass.
Sponsored by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.), the amendment would prohibit the government from using the so-called “business records” provision of the Patriot Act to obtain information about web browsing history or internet searches. If investigators wanted to acquire such information, they would have to obtain a court order after showing probable cause that the U.S. person whose records were being sought was an agent of a foreign power or international terrorist group.
Wyden’s amendment fell one vote short of the 60 votes needed to overcome a filibuster in the Senate. But a similar proposal by Rep. Zoe Lofgren (D-Calif) will be considered by the House when it votes on extending the “business records” provision and two other, less controversial provisions. One allows investigators to seek court orders for “roving” wiretaps for suspected terrorists who change telephones; the other is aimed at so-called “lone wolf” terrorists not connected to an organization.
Although the Senate didn’t approve Wyden’s amendment on browsing history, it voted to strengthen privacy in another way. It approved an amendment designed to ensure that the secret court that monitors intelligence investigations (the Foreign Intelligence Surveillance Court) will make greater use of outside experts — “friends of the court” — to review and potentially challenge the government’s attempts to obtain information about Americans. That too should be part of a final bill.
Both the House and Senate versions of the legislation would end one of the greatest abuses of the “business records” provision: the use of that authority to search through the telephone call records of Americans.
Almost two decades after the enactment of the Patriot Act, Republicans and Democrats alike have belatedly realized that Congress has gone too far in sacrificing Americans’ privacy to the campaign to detect and disrupt terrorist plots.
A major turning point was the revelation by Edward Snowden in 2013 of how the government, relying on a strained interpretation of the Patriot Act, had scooped up the telephone records of millions of unsuspecting Americans. Some Republicans joined the civil libertarian chorus after it was revealed that the FBI cut corners in conducting surveillance on Carter Page, a former Trump campaign adviser.
Finally, courts increasingly are recognizing that Americans have a legitimate expectation of privacy in records stored by third parties such as providers of telephone and internet services. That insight suggests that the government should be required to obtain a court order for web browsing information.
There is bipartisan support for extending these three provisions. But in doing so, Congress must institute new privacy safeguards — including protection for Americans’ web browsing.
— Los Angeles Times
