U.S. Surveillance Reform Threatens Privacy Protections Around Americans’ Online Activity

On May 14, 2020, the U.S. Senate passed the USA Freedom Reauthorization Act of 2020 (the Bill) to renew a number of lapsed surveillance powers, including reauthorizing section 215 of the USA PATRIOT Act (the Act) which allows the U.S. government to collect certain business records, such as phone records held by telephone companies, for foreign intelligence and international terrorism investigations if deemed “relevant” to such investigations. The controversially broad powers under section 215 have been criticized for threatening privacy protections and lacking meaningful oversight by effectively permitting warrantless record collection.

A number of senators attempted to introduce an amendment to the Bill, known as the Wyden-Daines amendment, which would remove internet website browsing information and search history from the scope of authority under section 215 of the Act. The amendment would require law enforcement agencies to demonstrate probable cause and obtain a warrant before accessing such information about individuals. However, this amendment failed to pass in the Senate by a single vote.

As part of the Senate’s debate on the Bill, senators passed a version of the Bill different from the one passed by the House of Representatives. The Bill must now be sent back to the House for approval, giving a second chance for the amendment to be added to the Bill before becoming the law.

The Bill has faced its fair share of criticism, as technology companies came together to pen an open letter to the House representatives urging that the Wyden-Daines amendment be incorporated into the Bill, while the American Civil Liberties Union and the Humans Right Watch encouraged the same in a letter of their own.

The House was set to approve the Bill and potentially consider the amendment in a vote scheduled at the end of May, but the House leadership decided to postpone the vote due to lack of bipartisan support. Instead, the House voted to send the Bill to a conference committee to negotiate changes to the final Bill. It is now unclear when the surveillance powers under the Bill might be considered again.

Summary By: Anna Troshchynsky