Sen. Mitch McConnell Looks To Undermine Efforts to Protect Americans From Secret FBI Surveillance

An amendment to a FISA renewal bill would let the FBI snoop on your online browser history.


If you needed a reminder that several Republican lawmakers only care about secret surveillance when their guy is the target, keep an eye on Senate Majority Leader Mitch McConnell (R–Ky.).

This week the Senate is expected to vote to renew some Foreign Intelligence Surveillance Act (FISA) authorities that expired in March. As part of the renewal, some privacy-minded senators from both sides of the aisle are attempting to attach some reforms to better protect Americans from warrantless surveillance.

On Monday, Spencer Ackerman at The Daily Beast reported that McConnell, who is urging senators to reject these reforms, is circulating an amendment that would actually expand the authority of the FBI to secretly snoop on citizens.

Two independent sources provided a copy of the amendment to Reason. As Ackerman reported, the amendment would give the FBI the authority under the PATRIOT Act to secretly collect the browsing records and search history of Americans without a warrant.

McConnell's amendment accomplishes this by adding the words "internet website browsing records, internet search history records" to the list of records described in FISA law that covers FBI searches that require businesses to provide customer records. In other words, this amendment would permit the FBI to turn to your internet provider and demand they fork over your browser history.

Needless to say, this is not going over well with the senators and privacy activists who are actually trying to reform FISA to better protect Americans' privacy. From The Daily Beast:

Sen. Ron Wyden (D–Ore.) said that Barr, who has been deeply involved in investigations of interest to Trump, could authorize an investigation into a political rival, which could then unlock the internet-spying powers McConnell wants to grant the FBI.

"Under the McConnell amendment, Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation," said Wyden, who has been trying to ban warrantless surveillance on such records.

McConnell's amendment is clearly intended to replace and subvert a rival amendment by Wyden and Sen. Steve Daines (R–Mont.). The amendment would forbid the FBI from warrantlessly demanding a person's website browsing or search history.

Another amendment by Sens. Mike Lee (R–Utah) and Patrick Leahy (D–Vt.) would bolster Americans' privacy protections by calling for amicus curiae—outside advisers—to work with the FISA court to advocate on behalf of the privacy rights of Americans who may be targeted in these secret investigations. McConnell has also introduced an amendment to subvert Lee and Leahy's amendment by limiting the review by these attorneys to cases involving a campaign for federal office or somebody who may have violated the Foreign Agents Registration Act. Essentially, McConnell is trying to adjust this law so that it would only apply to cases like the Russian probe into President Donald Trump and his former staff like Mike Flynn and Carter Page, but not the rest of us.

Sen. Rand Paul (R–Ky.) is trying to amend the FISA law to simply demand warrants from a conventional court when surveilling American citizens, period. McConnell is warning against Paul's bill. A fact sheet being sent around to the Senate (that was also provided to Reason) states that Paul's amendment would lead to "annihilating FISA and putting Americans in danger." The fact sheet lists all the terrorists that the feds wouldn't have been able to secretly snoop on under Paul's warrant demands, which includes the San Bernardino shooter Syed Rizwan Farook, the Tsarnaev brothers responsible for the bombing of the Boston Marathon, and one of the bombers responsible for the 1993 World Trade Center bombing—arguments that might have been more compelling if this warrantless surveillance had actually prevented any of these attacks.

A group of more than 35 civil rights and privacy groups, led by the American Civil Liberties Union, Demand Progress, and FreedomWorks, sent a letter Monday urging senators to pass the amendments by Daines, Wyden, Lee, Leahy, and Paul, and reject any others that undermine these enhanced privacy protections (like McConnell's). Read their letter here.