After three days of negotiations, House lawmakers have struck a deal on an amendment aimed at protecting innocent Americans from being spied on by their own government online.
Discussions were carried out behind closed doors over Memorial Day weekend after news broke Friday that House leaders had agreed to allow a vote on an amendment introduced by Reps. Zoe Lofgren and Warren Davidson to prohibit the FBI from targeting Americans’ web browsing history without a warrant.
“After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” Lofgren, a Democrat of California, said. “Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant,” she added.
The House is preparing to vote as early as this week on the surveillance re-authorization bill, which will reinstate several key tools used by the FBI to conduct foreign intelligence investigations.
The Lofgren-Davidson amendment will require the FBI to obtain a warrant even if there’s only a possibility that the data it seeks is tied to a U.S. person. If the government wishes to access the IP addresses of everyone who has visited a particular website, it could not do so without a warrant unless it can “guarantee” that no U.S. persons will be identified.
“For too long, Americans’ most private information has been compromised by vague laws and lax privacy protections,” Davidson, a Republican of Ohio, said.
“With the vote on the Lofgren-Davidson Amendment to FISA reform this week, we take an important step toward restoring Americans’ long-neglected Fourth Amendment rights,” he added. “Protecting Americans’ internet browser searches from warrantless surveillance is a modest, though important first step. With the amendment’s adoption, I will be voting to reauthorize the expired sections of FISA, and urge my colleagues to do the same.”
Sen. Ron Wyden, who cosponsored a Senate version of the amendment, initially announced his support for the Lofgren-Davidson amendment, but later withdrew it based on remarks House Intelligence Chairman Adam Schiff gave to the New York Times, which appeared to downplay the bill’s impact. Privacy reformers in the House have painted Schiff, with whom they’ve had to negotiate, as a significant roadblock to the amendment’s success.
Democrats hoping to limit the FBI’s ability to conduct warrantless surveillance online faced stiff resistance from their own party leaders. In February, the House Judiciary Committee, which has primary jurisdiction over FISA-related issues, canceled its own markup hearing to stop Lofgren and Davidson from introducing their amendment, which will now go straight to the floor for a vote.
When the bill was taken up by the House Rules Committee in mid-March, a provision was attached to attract Republican votes that gave the U.S. attorney general final authority over investigations involving U.S. politicians.
Up until Tuesday morning, Lofgren and Schiff were still hammering out the exact language of the amendment. Sources with direct knowledge of the negotiations told Gizmodo on Sunday that early versions of the text were thought to contain a significant loophole that would enable warrantless surveillance of Americans’ internet activities to continue.
Though Schiff had reportedly agreed early on that the FBI should be required to get a warrant before targeting specific Americans by name, early copies of the text were thought to be inadequate when it came to gathering data on who had visited a particular website or viewed a particular piece of online content, such as a YouTube video.
An issue central to the discussion was how to protect innocent Americans caught up in FBI investigations involving U.S.-based IP addresses, which foreign actors can use to mask their locations.
A Schiff spokesperson did not respond to a request for comment.
Update, 9:35pm: This article was updated to reflect Sen. Ron Wyden’s decision to withdraw his support for the amendment.