George Bush signing the Patriot Act in 2005. Photo: Susan Biddle/The Washington Post
The Freedom Act, a continuation of the Patriot Act, is up for renewal. A few politicians want to make changes. As usual, politicians can’t agree on what changes to make. One of them was an amendment to protect people’s browser histories. With that amendment, government organizations would need a warrant to search your browser history, which they could get from your computer or through other tracking sources, like your internet service provider (ISP). Otherwise, the Freedom Act could allow such data collection.
The amendment, while popular with privacy advocates, was not popular with Senate Republicans. Specifically, Mitch McConnell (R-KY). McConnell introduced an amendment that did the opposite, it codified and guaranteed the government’s ability to access your web browser history. The senate held a vote, despite reduced attendance. The amendment didn’t pass because some people are quarantined and weren’t able to vote remotely. Another person wanted to vote to protect privacy, but was flying to Washington, DC when the vote took place.
The amendment to protect our browser histories failed by just one vote. That’s exactly what Mitch McConnell wanted, he intentionally held the vote when many people who would have voted yes were unable to vote.
This is how democracy fails and a government increases its power.
In This Article:
What is the Patriot Act?
After 9/11, America vowed never again. To try to make this a possibility, the politicians at the time agreed on a new act to give the government better surveillance capabilities. These were rather extreme, and many pointed out that they were clear 4th amendment violations, that is, they allowed for warrantless surveillance. Most of the politicians who voted in favor of the bill never even read it. However, they were afraid of what their voters would think of them if they didn’t pass it.
The full name of the Patriot Act is actually “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” Or, USA PATRIOT. Yes, it’s a little on the nose. That was the point. At the time, to not be on board with the Patriot Act was to signal that you were anti-America. Like the red scare of the 50’s, dissenting opinions were squashed.
What’s Actually in It?
What exactly did they pass? Basically, the Patriot Act gave the government more power to monitor and spy on U.S. citizens, ignoring the checks and balances put in place by the Fourth Amendment, like judicial oversight (AKA: warrants). It also allowed the government to obfuscate these efforts from the public, censoring information about their searches and investigations that would otherwise be public. This cut off public accountability. Those in charge wouldn’t have to worry about losing their jobs over their actions, and they wouldn’t have to worry about Fourth Amendment rights, as long as a secret court approved their searches. Even for non-terrorism cases, they almost always did.
Interestingly, prior to 9/11, politicians and law enforcement had pushed for these capabilities repeatedly. However, other politicians struck the bills down. The panic after 9/11 changed everything. Now, law enforcement could request warrantless information on anyone. You can read more about it on the ACLU’s website, but the impact was devastating to personal privacy. The government finally could sidestep that pesky Fourth Amendment.
Why Does it Have to be Renewed?
The Patriot Act was supposed to be a temporary measure, at least, it was supposed to seem like a temporary measure. This was one of those situations in which civil rights were suspended for national security, but were supposed to be restored. The Patriot Act expired in 2015, but the Freedom Act kept most of those security measures alive. It added some oversight, and also forced government agencies to stop bulk collection of data from businesses and institutions. The Freedom Act also puts an end to the automatic gag order on businesses that the government searches, meaning they can ensure their customers or users are aware. However, judges have still sealed this information on an individual basis.
The new restrictions in the Freedom Act were added largely thanks to the uproar after Edward Snowden’s NSA leaks. However, the power to collect large swaths of data on individuals and perform “sneak and peek” warranted searches—where the person doesn’t know they were searched until afterwards—remains.
In March of this year, many of those measures were set to expire. However, congress will once again save the law. This time, however, they may strengthen it, rather than chip away. Republicans in the House and Senate seem to want to strengthen the government’s spying capabilities once again. Mitch McConnell, Senate Majority Leader, introduced an amendment to the bill, sending it back to the House for a vote. It barely passed through the Senate though.
What Did the Privacy Amendment Attempt?
“Is it right, when millions of law-abiding Americans are at home, for their government to be able to spy on their internet searches and their web browsing without a warrant?”
– Sen. Ron Wyden (D-OR)
In a bipartisan effort to protect citizens’ private browsing history, Ron Wyden (D-OR) and Steve Daines (R-MT) introduced an amendment to the Freedom Act renewal. This would have removed the right for government organizations to use a secret court to obtain browsing history of anyone without a warrant or oversight.
The original Freedom Act allowed this data collection, but only because it had been assumed. That means it could be open for a judge knocking it down if someone challenged it. This amendment would have protected individual privacy. To counter that, Senate Majority Leader Mitch McConnell (R-KY) challenged the amendment with one of his own.
What Was Mitch McConnell’s Amendment?
McConnell’s amendment was a direct contradiction of the one put forward by Wyden and Daines. It would specifically put browsing history under section 215 of the Patriot Act, allowing government agencies to request browsing history of a user without a warrant. Supposedly, this is only for relevant counter terrorism or counterintelligence efforts, law enforcement has misused the Patriot Act more than they’ve used it for these purposes. For example, the “sneak and peek” warrants have been used in thousands of drug cases, but, as of 2009, only 15 counterterrorism cases.
McConnell wanted to specifically protect government agencies so they’d have free access to any American’s browsing history, even without probable cause. Republicans tend to side with McConnell, so it’s likely to pass in this form.
Senate (Technically) Votes in Favor…
The Freedom Act renewal, including the amendment to protect browsing habits of users, passed through the Democratic-majority House. It reached the senate, where the amendment to protect our privacy failed. It needed 60 votes to pass. Instead, it received only 59 votes. One off.
Four people who may have voted in favor were not able to vote. One, Lamar Alexander (R-TN) due to quarantine, another, Patty Murray (D-WA) who said she intended to vote in favor, was on her way to Washington, DC at the time of the vote. Two others, Bernie Sanders (D-VT) and Ben Sasse (D-NE), didn’t comment on why they didn’t vote. McConnell intentionally held the vote at a time when at least two of these people couldn’t vote, and didn’t allow remote voting, just so he could get his way. He bypassed the democratic process to strip away privacy rights and chisel away at our Fourth Amendment rights.
That should bother you.
Will it Pass?
The constitution didn’t stop the Patriot Act from passing the first time. The Patriot Act and now the Freedom Act continually gets renewed. While this amendment failed in the Senate, it passed through the House. It’s possible that the House could refine the amendment and attempt to protect our browsing history again. Regardless, if anything passes through the house, and is unchanged in the senate, President Trump will sign it. This grants his justice department powers that he likely wants it to keep. Therefore, expect your browsing history to be up for grabs in the near future.
What Can You Do?
If passed, William Barr will be able to look into your browsing history if he feels like it.
There is some good news. If you encrypt your devices, use a long and secure passcode or password (that you don’t have somewhere), and you don’t sync your browsing history anywhere, then you should be safe, at least locally. If you do sync your history, say through Google, iCloud, or Firefox sync features, then you’ll have to ensure those accounts are encrypted and secure. It’s best not to sync your history at all if you want to protect it. Finally, browse only using a VPN, which can obfuscate your browsing history. Consider using one like NordVPN, which refuses to track anything you do with the service and encrypts the data in a way that they cannot access.
You likely don’t have anything to hide. However, your browsing habits are personal and varied. You likely don’t want anyone knowing some of the websites you frequent, or your accounts on them. You don’t have to be a “shady” individual to want privacy. Your computer doesn’t have to be your 1984-esque telescreen. You have a right to your own life and to keep whatever you hold private as just that: private. So, feel free to wipe your history, use a VPN, and go where you please. Big Brother may try to keep watching, but, for now, we can still stay safe.
Sources:
- ACLU
- Melissa Bell, The Washington Post
- Violet Blue, Engadget
- Alex Byers, Politico
- Laura Hautala, cnet
- Martin Matishak, Politico
- Sara Morrison, ReCode
- Benjamin Wallace-Wells, New York Magazine