May 13, 2020

Wyden Opposes Warrantless Government Surveillance of Americans’ Internet Browsing History

As Prepared for Delivery

Mr. President, I rise to offer an amendment to ask a basic question. Is it right at this unique time when millions of law-abiding citizens are at home, for the government to be able to spy on their internet searches and web browsing without a warrant? Should law-abiding Americans have to worry about their government looking over their shoulders from the moment they wake up in the morning and turn on their computers to when they go to bed at night? I believe the answer is no. But that’s exactly what the government has the power to do without our amendment.

Let’s think about how American’s are using the internet these days. Helping kids with homework, checking out prescription drug prices for a sick parent and visiting scores of different websites. In a pandemic, the internet may be their only connection to the outside world. Don’t these Americans deserve some privacy? Don’t they deserve better than their government snooping into the websites they visit. How can this be that the government can spy on them when they are not suspected of doing anything wrong? How is this okay in America?

With web browsing and searches, you’re talking about some of the most sensitive, most personal, and most private details of Americans’ lives. Every thought that can come into people’s heads can be revealed in an internet search or a visit to a website. Their health history and medical concerns. Their political views. Their romantic lives and friendships. Their religious beliefs. Collecting this information is as close to reading minds as surveillance can get.  It is digital mining of the personal lives of Americans.

The typical American may think to themselves, I’ve got nothing to worry about. I’ve done nothing wrong. The government has no reason to suspect me of anything. Why should I worry? Unfortunately, the question is not whether you did anything wrong. The question is whether a government agent believes they have the right to look at your web searches. In other words, it’s open season on anyone’s most personal information.

There is a simple solution: require a warrant. With my amendment, the government can go to the court and, with a warrant, collect whatever it wants from those who actually threaten us.  And, in an emergency, the government can use the emergency provision of FISA, collect the information immediately and settle up with the court later.

Now let me explain how we got here. Right now, the government can collect web browsing and internet search history without a warrant under Section 215 of the PATRIOT Act. Section 215 is the most controversial and dangerous provision of FISA. That’s because it is so vague and so broad. Under Section 215, the government can collect just about anything so long as it is relevant to an investigation. This can include the private records of innocent, law-abiding Americans. They don’t have to have done anything wrong. They don’t have to be suspected of anything. They don’t even have to have been in contact with anyone suspected of anything. Their personal information just has to be “relevant.” 

Back in 2001, when Congress passed the PATRIOT Act, Americans were rightly concerned about the government collecting their library borrowing records without a warrant. They understood that the books they borrowed and read were a private matter. But today, almost two decades later, the Senate is debating the use of those same PATRIOT Act authorities to conduct government surveillance that is a thousand times more invasive of their privacy.

Section 215 also has a long history of abuse by the government. A few years ago, the government decided it could use Section 215 to justify the collection of every American’s phone records. In other words, the government secretly decided that the phone records of millions of innocent, law-abiding Americans were relevant and could be collected without a warrant.  It was only when this abuse was publicly revealed that Congress stepped in and began reining in the government’s phone record collection.

Mr. President, the Supreme Court recently determined that physical tracking of Americans as they move around requires a warrant. And in this bill, Congress is finally getting around to stopping the government from using Section 215 to conduct warrantless collection of certain location data. But the irony is, now that Americans have been asked to stay home and not move around, they are more vulnerable than ever to abusive surveillance. This is wrong. People today live their lives on-line. Now more than ever, during this pandemic, Americans deserve assurances that the government isn’t spying on them as they move around the internet. They deserve to know that the government isn’t engaged in digital tracking of their personal lives.

The warrantless collection of Americans’ web browsing history offers endless opportunities for abuse. Donald Trump has called for investigations of his political enemies. Attorney General Barr has injected himself into investigations that affect the personal or political interests of Donald Trump. All it would take is for some innocent American’s web browsing history to be deemed relevant to one of those investigations, and the government could start collecting it. And then it wouldn’t even matter whether that web browsing history had anything to do with the original goal of the investigation. For any number of reasons, the web browsing history of that innocent American could reveal personal, even embarrassing information that could then be used against him or her.

This isn’t even a partisan proposition. Any administration could be tempted to collect the web browsing and internet search history of political enemies – politicians, activists, journalists.

Mr. President, I’ve heard a few arguments against this amendment, how if it passes somehow Western civilization will end. But none of those arguments hold water.

The first argument is that the government needs this information before it can get a warrant. But without web browsing history, there is still plenty of information still available to the government without a warrant. Phone and email metadata, subscription data, other business records. But the big picture response to this argument is that it is Congress’s responsibility to determine when some information is so sensitive that it requires a warrant. In this very bill, Congress has done that with regard to geolocation information. Digital tracking of innocent Americans demands the same protections. And, as I’ve said, when there’s an emergency, the government can get this information immediately and go back to the court later.

The other argument is that the amendment would create protections for Americans that don’t exist in the criminal context. The problem with that argument is that Congress isn’t legislating on criminal law right now – but it has a unique opportunity to prevent intrusive surveillance of Americans and prevent abuses. But, Mr. President, FISA requires an extra layer of protection. Unlike criminal law, FISA is secret. It is non-adversarial. It relies on government representations that, as we have learned from the Inspector General, are frequently inaccurate. When the government uses FISA information against Americans, there is little or no notice or opportunity to challenge the surveillance. And, most of all, it is subject to secret interpretations of the law – secret law that has led to abuses that Americans sometimes don’t learn about for years.

That brings me to the McConnell amendment. Not only is the majority leader trying to block this bipartisan effort to protect the rights of Americans, his amendment would make the situation even worse. Right now, the government can collect the web browsing and internet searches of Americans without a warrant under Section 215. But, so far, there is no explicit Congressional authorization for the government to do that. The McConnell amendment would, for the first time, provide that authorization. The McConnell amendment would, in effect, tell the government that Congress approves of the warrantless collection of Americans’ most private information. That would be a major step backwards.

The McConnell amendment pretends to limit this collection. But that is a big fake. What the McConnell amendment actually does is meaningless. It says the government can’t collect “content,” but no one knows what that means when it comes to web browsing and internet search history. There is no clarity in the statute. There is no settled law in the courts. The Supreme Court hasn’t weighed in.

So what the McConnell amendment does is invite the Attorney General to produce yet another secret interpretation of the law, designed as these things always are, to allow for the collection of the broadest possible set of Americans’ private information. 

Mr. President, at some point, the Senate needs to learn some lessons from history. Section 215 was secretly interpreted and abused in the past. The use of these authorities to spy on innocent Americans’ web browsing and search histories is a screaming alarm warning us of future abuses. What the American people deserve, and what my amendment provides, is clarity and transparency about what the government cannot collect without a warrant.

A final argument I have heard is that, if the Senate amends this bill, it won’t pass again in the House. But there were 75 House Democrats and many Republicans as well who voted against this bill because it did not include enough reform. Adding key reforms like my amendment can only strengthen its support in the House.

Mr. President, the American people will not tolerate warrantless government spying on their most private information.  I cannot accept that level of unchecked surveillance. That is why I am offering this amendment with a broad, bipartisan group of co-sponsors from both parties: Senators Daines, Leahy, Lee, Udall, Markey, Heinrich, Baldwin, Sanders, Braun, Cramer, Merkley, Paul and Booker.

And that is why so many organizations from across the political spectrum have endorsed this amendment. Mr. President, I ask unanimous consent that a list of those organizations be entered in the record.

Americans are looking to us to defend their privacy and constitutional rights, and to protect them from abuses. This is the moment. I urge my colleagues to support the Wyden-Daines amendment and oppose the McConnell amendment.

Finally, Mr. President, I want to commend Senators Leahy and Lee for their incredible efforts to reform FISA. They have an amendment to strengthen the oversight role of the independent amici of the FISA Court, which I have co-sponsored and strongly endorse.