"We've reached kind of an inflection point in the privacy debate," says Senator Ron Wyden (D–Ore.). With Americans spending more time online than ever before during the COVID-19 pandemic, he worries that government surveillance of the internet matters more now.
Before the Senate's May 14 vote to reauthorize the USA Freedom Act, formerly known as the PATRIOT Act, Wyden fought a losing battle to rein in the broad authority that it gives U.S. intelligence agencies to spy on the web activities of American citizens.
"Americans shouldn't have their most intimate information…snooped over by the federal government without a warrant," says Wyden. "That [information] is private and personal. It might be your dating history. It might be religious beliefs. It might be your fears…It's like data mining of somebody's thoughts."
Wyden, a Democrat, along with his Republican colleague Steve Daines (Mont.), tried attaching an amendment to the bill that would've explicitly banned government agents from collecting Americans' web search histories without a warrant from a non-FISA court. It was defeated by a single vote.
Now an anti-surveillance activist group called Fight for the Future is trying to convince Speaker Nancy Pelosi (D–Calif.) and congressional Democrats to add the same amendment to the House version of the bill.
But in a political world where Democrats regularly call the president a power-abusing authoritarian in the making and Republicans bemoan a deep state plot to take down Trump, there's still only weak support for concrete measures to rein in the post-9/11 surveillance state.
"Nancy Pelosi has spent the last several years saying that this administration is dangerous. She impeached the president for abuse of power," says Evan Greer, deputy director of Fight for the Future. "If she doesn't take this opportunity to get this amendment in place that at least puts some limit on this administration's surveillance authority, it's hard not to feel like the entire 'Resistance' rhetoric has been a bit of a scam."
Greer says Wyden's introduction of the amendment could be a way of alerting the public that intelligence agencies have already been collecting U.S. citizens' web search data. Wyden can't say that explicitly because that information would be classified.
"Senator Wyden has often been sort of a bit of a canary in the coal mine on things like this," says Greer. "He'll ask very specific questions of intelligence officials when they come to the Hill that sort of get at some of these things."
One example was Wyden's questioning of former Director of National Intelligence James Clapper in 2013 about the bulk collection of Americans' phone records. When Wyden directly asked Clapper "does the [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans," Clapper answered, "No, sir…not wittingly." Less than three months later, former intelligence contractor Edward Snowden provided journalists documents showing that the FBI and NSA collected millions of cellphone records.
When Reason asked Wyden if he could provide evidence that the government has engaged in warrantless surveillance of Americans' web searches, he said that he could not discuss classified intelligence information but that he has put in requests for public disclosure of any practices of this sort.
"I believe there's a [records] reporting requirement," says Wyden.
Senate Majority Leader Mitch McConnell (R–Ky.) opposed Wyden in the Senate, claiming that additional limitations to the nation's surveillance laws would "jeopardize important tools that keep America safe."
Wyden says McConnell's claim is "flatly inaccurate" and that his amendment addresses McConnell's national security concerns because, during a crisis, law enforcement agencies would still be allowed to gather intelligence before obtaining a warrant.
A more modest Senate amendment requiring FISA courts to hear analysis from opposing parties, such as the American Civil Liberties Union, was included in the version of the bill that passed. But Republican Sen. Rand Paul's more radical effort to eliminate the surveillance of American citizens altogether without a warrant from a non-FISA court was defeated 11-85. Even Wyden voted against it.
"I think that Senator Paul started an important conversation…with respect to whether the whole framework needs to be reconsidered," says Wyden. "I've told him that right now, I think I've got my hands full trying to make the many reforms that are needed in FISA immediately."
Greer encourages anyone concerned about government surveillance of what citizens are searching for on the web to call Nancy Pelosi's office and pressure her to put a version of the Wyden-Daines Amendment, one of which is currently being drafted by Rep. Zoe Lofgren (D–Calif.) and Rep. Warren Davidson (R–Ohio), back in the bill.
"It's really important that we remind lawmakers that the public does care about our right to be free from overly broad and intrusive surveillance," says Greer.
Produced by Zach Weissmueller, opening graphics by Lex Villena
Music: "Europa" by Yehezkel Raz licensed from Artlist; "Ganymede" by Yehezkel Raz licensed from Artlist; "Hang Drum Traveler" by Max H. licensed from Artlist; "The End" by Max H. licensed from Artlist
Photos: Rand Paul in Congress, Win McNamee/CNP/AdMedia/SIPA; Rand Paul Listening, Toni L. Sandys/CNP/AdMedi/SIPA; Mitch McConnell leaving Senate chamber, Tom Williams/CQ Roll Call/Newscom; James Clapper Testifying, Zhan Jun Xinhua News Agency/Newscom; Ron Wyden with colleagues in Capitol, SIPA/Newscom; Bill Barr looks at camera, Sipa USA/Newscom; Mitch McConnell in halls of Capitol, SIPA/Newscom; Nancy Pelosi and Adam Schiff at podium, Aurora Samperio/ZUMA Press/Newscom; J. Edgar Hoover building, Graeme Sloan/Sipa USA/Newscom; Nancy Pelosi at press conference, Stefani Reynolds/picture alliance/Consolidated/Newscom; Nancy Pelosi talking to press, Tom Williams/CQ Roll Call/Newscom; Trump holds up fist at White House, Andrew Harrer/UPI/Newscom; Web search in a dark room, Yui Mok/ZUMA Press/Newscom; Steve Daines talks with farmers, Tom Williams/CQ Roll Call/Newscom; Ron Wyden talks to reporters, Caroline Brehman/CQ Roll Call/Newscom; Zoe Lofgren in Congress, US Senate Television via CNP/MEGA/Newscom