Senate rejects tougher standards for collection of search and browsing data

In a separate vote, lawmakers strengthen a program that examines privacy issues raised by government requests for data.

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The US Senate voted Wednesday on an amendment to require government investigators to show probable cause when requesting web browsing data in counterterrorism and counterintelligence investigations.

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The US Senate voted down an amendment to the USA Patriot Act on Wednesday that would create a tougher standard for government investigators to collect the web search and browsing histories of people in the states. The bipartisan amendment, proposed by Sen. Ron Wyden of Oregon, a Democrat, and Sen. Steve Daines of Montana, a Republican, would've required the Department of Justice to show probable cause when requesting approval from the Foreign Intelligence Surveillance Court to collect the data for counterterrorism or counterintelligence investigations.

Later Wednesday, the Senate voted to approve a separate bipartisan amendment that would expand a program that reviews some FISA Court requests and provides advice to judges on privacy and civil liberties concerns.

Before the vote on the browsing history issue, Daines told the Senate the bill was necessary to keep the government from intruding into the most sensitive information of internet users in the US. "If you want to see an American's search history, then you better go to a judge and get a warrant," he said.

The amendment required 60 votes to pass and failed with a final tally of 59 ayes and 37 nays. A separate amendment drafted by Kentucky Sen. Mitch McConnell, a Republican, would expressly allow the collection of web search and browsing data under section 215 of the Patriot Act, which doesn't require that investigators show probable cause. The Wyden-Daines amendment, by contrast, would've given government the ability to request the data under a separate part of the law, Title I, which does require probable cause.

The votes came more than a month after three sections of the USA Patriot Act expired in March. Section 215 allows the government to collect data that's "relevant" to counterterrorism or counterintelligence investigations, with approval of the FISA court.

Privacy oversight strengthened

The Senate voted to approve the amendment from Sen. Patrick Leahy of Vermont, a Democrat, and Mike Lee of Arizona, a Republican, that would strengthen the amicus curiae program, which brings in outside legal experts to review novel or significant interpretations of the law presented by the government. The experts provides advice on privacy or civil liberties issues, technological questions and any other relevant legal issue brought up by the case at hand.

The US House of Representatives would have to approve the program in a similar amendment to the Patriot Act for the bill to be sent to the White House for President Donald Trump's signature.

ACLU senior legislative counsel Neema Singh Guliani applauded the amendment's passage, saying the update brings needed oversight to the FISA Court.

"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," she said, adding that more needs to be done to make sure government requests for data on people in the US undergo enough scrutiny.

Another amendment under consideration, from Sen. Rand Paul of Kentucky, a Republican, would require warrants for data collection on people in the US, and limit the use of data collected through the Patriot Act as evidence in criminal cases or lawsuits that are outside the jurisdiction of the FISA court.

In addition to his amendment permitting the collection of browsing and search history without probable cause, McConnell drafted an amendment that would limit the use of Patriot Act powers for investigating candidates for federal office. The amendment comes as Trump and members of his administration have criticized FBI investigations into members of his campaign team using Patriot Act powers.

McConnell didn't address the Senate regarding either the Wyden-Daines amendment or the Leahy-Lee amendment, and his office didn't respond to a request for comment on his drafted amendments.

Wyden had said his amendment was especially important now that millions of Americans are at home to help curb the spread of the coronavirus, relying on the internet to work, educate their children and access information.

"Stand up for those millions of people who have to be at home," Wyden had said.