House Leaders Strike Deal to Protect U.S. Web Browsing Data From Warrantless Surveillance

Rep. Zoe Lofgren (D-CA) and Rep. Adam Schiff (D-CA) on January 30, 2020 in Washington, DC. (Photo: Samuel Corum, Getty)
Rep. Zoe Lofgren (D-CA) and Rep. Adam Schiff (D-CA) on January 30, 2020 in Washington, DC. (Photo: Samuel Corum, Getty)

After three days of negotiations, House lawmakers have struck a deal on an amendment to protect innocent Americans from being spied on by their own government online.

Discussions were carried out behind closed doors over Memorial Day weekend after news broke Friday that House leaders had agreed to allow a vote on amendment to prohibit the FBI from collecting Americans’ web browsing history without a warrant.

“After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” Rep. Zoe Lofgren said in a statement.

The House is preparing to vote as early as this week on the surveillance re-authorization bill, which will reinstate several key tools used by the FBI to conduct foreign intelligence investigations.

Lofgren’s amendment — cosponsored by Rep. Warren Davidson — will reportedly require the FBI to obtain a warrant even if there’s only a possibility that the data it seeks belongs to a U.S. person. If the government wishes to access the IP addresses of everyone who has visited a particular website, it cannot do so without a warrant unless it can “guarantee” that no U.S. persons will be identified.

“Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant,” Lofgren said.

The announcement marks a significant victory for privacy reformers that would have seemed implausible only weeks ago. Democrats seeking to limit the FBI’s ability to conduct warrantless surveillance online faced stiff resistance from their own party leaders. In February, the House Judiciary Committee, which has primary jurisdiction over FISA-related issues, cancelled its own markup hearing to stop Lofgren and Davidson from introducing their amendment, which will now go straight to the floor for a vote.

Senator Ron Wyden, who cosponsored a Senate version of the amendment, has signed off on the House text, saying in a statement that it will also prevent the government from collecting data from virtual private networks that might be used by Americans. “Should the government be interested in who visited a website or watched a YouTube video, if there is any possibility those people are U.S. persons, the collection is prohibited,” he said.

“Finally, if, despite these clear prohibitions, a mistake is made and U.S. person records are collected, they must be immediately deleted,” Wyden added.

Up until Tuesday morning, Lofgren and Rep. Adam Schiff, the chairman of the House Intelligence Committee, were still hammering out the exact language of the amendment. Sources with direct knowledge of the negotiations told Gizmodo on Sunday that early versions of the text were thought to contain a significant loophole that would enable warrantless surveillance of Americans’ internet activities to continue.

Though Schiff had reportedly agreed early on that the FBI should be required to get a warrant before targeting specific Americans by name, early copies of the text were thought to be inadequate when it came to gathering data on who had visited a particular website or viewed a particular piece of online content, such as a YouTube video.

An issue central to the discussion was how to protect innocent Americans caught up in FBI investigations involving U.S.-based IP addresses, which foreign actors can use to mask their locations.

A Schiff spokesperson did not respond to a request for comment.

This is a developing story. Check back for updates.