An amendment requiring the FBI to obtain a search warrant before accessing U.S. Web browser history did not get any vote in the U.S. Senate on Wednesday.
The two-pronged initiative, led by Senators Ron Wyden (D-OR) and Steve Danes (R-MT), follows the announcement of an amendment to the PATRIOT Act to be resumed this week, allowing law enforcement to collect television footage without a search warrant. It is hoped that the amendment will take account of the forthcoming amendments to the PATRIOT Act that will be made at the time of entry into force and that the requirement for an arrest warrant will be clarified in advance.
Is it fair in these unique times, when millions of law-abiding citizens are at home, so that the government can spy on their search on the Internet and surf without a warrant? Widen asked Widen in the Senate for today’s vote.
Should law-abiding Americans fear that their government will keep an eye on them from the moment they wake up in the morning, turn on their computers and go to bed at night? I think the answer is no. But it is precisely for this reason that the government has the right to waive our amendment.
Instead of trying to solve this problem head-on, and withdrawing the offer to fully solve the research history, Widen insists that stronger safeguards be built in around the new government.
This means that federal authorities must show the court the probable cause of the crime before they can access a person’s web browser – this means that they must prove to the court that they have a good reason to suspect the person who committed the crime and that access to their browser will assist in the investigation of the crime.
This is a long-standing defence that Wayden and others have tried to add to the more controversial aspects of the spy laws introduced after the attacks of the 11th century. They were introduced in September 2001 but have not yet been implemented consistently.
The amendment received 59 votes, which is less than the number of votes required for its adoption. Thirty-seven senators voted against the amendment, but attention was drawn to four senators who did not take part in the vote, including former presidential candidate Bernie Sanders (I-VT). Three others were Lamar Alexander (NL), Patty Murray (D-WA) and Ben Sass (NS). Any one of them would have tabled the amendment.
Direction of travel reversal
The planned amendment to the aforementioned PATRIOT Act, drafted by Senate Leader Mitch McConnell (R-KY), explicitly authorises the collection of data for research and inspection purposes in Article 215 of the Act. This requires no probable cause, which means that the FBI will be able to effectively contact ISPs and ask individuals to provide a web browser history without proof of misconduct.
Worse than that: A series of controversial and highly questionable legal interpretations developed by the FBI allow viewer data to be stored and easily shared with other law enforcement agencies across the country through a simple search.
Section 215 of the Patriot Act has repeatedly demonstrated the ineffectiveness, cost and likelihood of illegal acts. The government’s Privacy and Civil Liberties Oversight Board (PCLOB) recently stated in a report that this measure cost American taxpayers 100 million dollars – and only gave them a viable lead in four years’ time.
U.S. Congress: The Espionage Act is flawed, open to abuse and does not provide for liability – let us confirm that.
Section 215 is the same section where Edward Snowden discovered that it had been misinterpreted by law enforcement to give him the right to confiscate call logs and access logs directly from ISPs and telecommunications companies: an interpretation that later proved unconstitutional and was reduced to a minimum.
In his speech today, Widen described Section 215 as the most controversial and dangerous situation… …because it’s so vague and so wide… Article 215 enables the government to collect almost anything relevant to the research. This could include the personal files of innocent, law-abiding Americans. You don’t have to do anything wrong. You don’t have to be a suspect. They shouldn’t have come into contact with anyone they suspected.
The proposed reintroduction of the possibility to collect investigative material, in particular without the need for a search warrant, is an extraordinary step backwards, especially as many thought that Article 215 could be deleted altogether.
The oversight mandate actually expired in March, but the Senate is in the process of renewing it and a vote on the final version is expected this week.
We believe that the use of HTTPS connections will somehow prevent the FBI from collecting information on the Web: Details such as the exact URL visited are secured with an encryption that is not accessible without fraud to the ISP and the federal government, even if a search for a domain name is detected. Tunneling and DNS-over-HTTPS will do this to a certain extent, depending on your own configuration. ®
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