Fifty-nine members of the Senate just voted in favor of my amendment to block warrantless government surveillance of Americans’ browser history. It failed by just one vote. McConnell is that much closer to giving Bill Barr the green light to spy on Americans’ private information. https://t.co/IV5ERbte48

— Ron Wyden (@RonWyden) May 13, 2020

The amendment senators did pass, by a 77-19 margin, was introduced by Patrick Leahy (D, Vermont) and Mike Lee (R, Utah). As described by the ACLU, it “strengthens the role of independent “friends of the court” to the Foreign Intelligence Surveillance Court, ensuring that the court has additional opportunities to hear the views of outside experts.”

BREAKING: BIG win tonight for the protection of Americans’ privacy and civil liberties! My bipartisan amendment with @SenMikeLee to reform our flawed #FISA surveillance authorities just passed 77-19.

Tomorrow we turn to the underlying bill, and then on to House.

— Sen. Patrick Leahy (@SenatorLeahy) May 13, 2020

In an op-ed published Sunday seeking support for the measures, the senators said “The key to our proposal is to substantially strengthen a program that currently allows FISA judges, in very limited circumstances, to appoint outside legal scholars — called “amici”— to independently analyze FBI surveillance requests that are particularly sensitive…We propose measures that would authorize and actively encourage judges in this secret court to seek independent amicus reviews in all sensitive cases — such as those involving significant First Amendment issues — thereby adding a layer of protection for those who will likely never know they have been targeted for secret surveillance.”

In response to the votes, ACLU Senior Legislative Counsel Neema Singh Guliani said in a statement “After many years of just rubberstamping laws used to commit civil liberties violations, Congress has overwhelmingly passed changes that will help ensure that government claims before a secret intelligence court do not go unchecked. The House should not consider any legislation that excludes these important changes.

But this won’t address all of the surveillance abuses that have come to light in recent years and Congress has more work to do to protect Americans’ privacy online. The vote today shows that a majority of senators agree that what we do online should not be subject to warrantless surveillance — and it’s past time for Congress to make this clear in our laws.”

On Thursday the Senate will vote on the third proposed amendment, from Rand Paul, that would require a warrant for the use of FISA searches on US citizens.

After 2015, the USA Freedom Act replaced NSA mass surveillance of American’s call metadata that had been enacted under the Patriot Act and Section 215. While it didn’t go so far as to completely reform the system as groups like the EFF and ACLU hoped, it changed things by having phone companies collect the data, under limits of how long it could be stored, with queries performed by agencies with a judge’s permission. Even the new rules have had problems, with phone companies storing more data than was legally allowed causing the NSA to wipe all data collected in 2018. Also, even more limited queries could end up touching millions of records.

Now the New York Times reports on a just-declassified study by the Privacy and Civil Liberties
Oversight Board from last year that looked into the program and found that it had only ever generated two unique leads during the time it was operating. That’s out of 15 reports total, but 13 had information the FBI was able to get through other methods, At a cost of over $100 million to operate the setup, this almost complete lack of production reveals more about why the NSA had stopped using it.

Sections of the Patriot Act were set to expire in 2019, but despite reported recommendations by the NSA to shut things down, they were extended as part of a funding bill. Now they’re up for review again by March 15th, and despite proposed bipartisan legislation intended to replace the program, AG William Barr is again pushing for an extension.

While there are a variety of facets to the bill, the most significant aspect of it is that it would prohibit the warrantless collection of cell-site and GPS geolocation data, as well as internet browsing and search history by US intelligence agencies. Additionally, the bill would eliminate the relevance clause that had allowed the NSA to justify its bulk data collection program, and establish a three-year limit for how long federal agencies can hold data that isn’t related to foreign intelligence efforts. The bill would attempt to do all this before March 15th.

Following the enactment of the USA Freedom Act in 2015, Section 215 would have expired this past December. However, the Senate pushed back the sunset date to March 15th as part of the short-term funding bill it passed in mid-November.

“Liberty and security aren’t mutually exclusive, and they aren’t partisan either,” said Senator Wyden. “This bill preserves authorities the government uses against criminals and terrorists, while putting Americans’ constitutional rights front and center.”

Despite the fact that Senator Wyden has managed to build some bipartisan support for his bill, it’s likely to face an uphill battle. In the past, Senate Majority Leader Mitch McConnell has been a vocal supporter of the Patriot Act. In 2015, McConnell attempted to introduce legislation that would have extended the act through to 2020 without making any changes to it. While the Senate eventually passed the USA Freedom Act instead, McConnell is likely to oppose any attempt to scale back the Patriot Act.

Last year the Supreme Court ruled, in a 5-4 decision, that a search warrant is required for law enforcement to perform cellphone tower searches to track someone’s location. The Daily Beast reported on a letter sent by the Office of the Director of National Intelligence (ODNI) to Senator Ron Wyden affirming that ever since that Carpenter decision, the “Intelligence community” has not sought cell-site location data or GPS records without a warrant.

It had been doing that, claiming authority under the Title V of the Foreign Intelligence Surveillance Act (FISA) / Section 215 of the Patriot Act. However Section 215 of the Patriot Act is set to expire next month, and in the letter (PDF), the assistant director writing it never confirms that the Supreme Court decision means they couldn’t, or wouldn’t, do it in the future.