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There was a vote against requiring warrants, but it was to maintain the status quo, not create a new access requirement.
This authority is nothing new. It’s been allowed for 20 years in foreign intelligence investigations, and is also allowed in basic criminal investigations -- all without a warrant.
The vote referenced here applied only to Americans “relevant” to counterterrorism and counterintelligence investigation.
Though a warrant isn’t needed, investigators still must get a court to sign off on the internet data access.
A viral Facebook post says Americans missed a big moment in privacy rights.
Some provisions of the 2001 Patriot Act — which greatly expanded government intelligence gathering in the wake of the 9/11 terrorist attacks — expired earlier this year amid GOP gridlock.
The legislation has drawn criticism over the breadth of surveillance it enables, particularly after classified documents leaked by former National Security Agency contractor Edward Snowden in 2013 revealed phone record metadata collected on a massive scale.
The U.S. House reauthorized the three lapsed intelligence programs in March 2020, and the U.S. Senate passed its own version May 14 — making changes that sent the bill back to the House. Before final passage, though, the Senate by the narrowest of margins defeated an amendment that would have limited access to internet browser and search histories.
This drew the ire of one Libertarian group, whose May 14, 2020, Facebook post on the subject has been shared almost 10,000 times.
This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook).
The post from Being Libertarian named the senators who opposed the amendment — including House Majority Leader Mitch McConnell of Kentucky and Wisconsin’s Ron Johnson, both Republicans — and said this:
"Here's the list of senators who sold out your freedoms. They all voted for federal agencies to have access to your internet history without obtaining a warrant."
But this statement is misleading in its simplicity. Access isn't as easy or widespread as that implies — or even a new thing.
The statement implies this was a vote to enable internet history access without a warrant, but the government has actually been able to do that for nearly 20 years.
That was among many powers granted by the 2001 Patriot Act. Section 215 can be used to compel third parties (such as internet service providers) to produce information related to intelligence investigations (not law enforcement investigations).
This has long been considered compatible with the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure, since the Supreme Court has said since the 1970s that protection does not apply to records held by third parties, according to Robert Chesney, director of the Robert Strauss Center for International Security and Law at the University of Texas at Austin. He noted this interpretation is now "under pressure," but still in place.
Section 215 allows government investigators to obtain internet browsing history or search queries, but there are several limitations, Chesney said.
For an American, this can only be used to obtain web history related to a counterterrorism or counterintelligence investigation. (For a foreign person, any foreign-intelligence purpose can justify access to online history.)
The request must be approved by the Foreign Intelligence Surveillance Court, made up of 11 federal judges from around the country. The court was established by Congress through the Foreign Intelligence Surveillance Act of 1978 to approve electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes.
The standard of proof to get such approval under Section 215 is somewhere between a subpoena and a search warrant, said Stewart Baker, a former general counsel of the National Security Agency who edited a book on the Patriot Act.
"Like a warrant, it requires the approval of a court (subpoenas often don’t)," he said in an email. "But unlike a warrant, the standard for granting access to records under Section 215 is ‘reasonable’ cause to believe the records are ‘relevant’ to a national security investigation."
This is short of the "probable cause" standard needed for the court to authorize a wiretap or physical search.
The U.S. Department of Justice makes all government appearances in the surveillance court, though they use supporting documentation from the FBI and NSA, Baker said.
We should also note the foreign intelligence court has come under fire after recent revelations.
A December 2019 report from the DOJ’s independent watchdog, Michael Horowitz, found "at least 17 significant errors or omissions" in warrant applications related to Carter Page, Donald Trump’s campaign adviser. An ensuing review in March 2020 of 29 randomly selected wiretap requests revealed the FBI could not locate supporting documentation for four, and the other 25 each contained "apparent errors or inadequately supported facts."
In 2019, the court received 1,010 applications for investigative action, of which it granted 688, modified 264 and denied in whole or part only 58, according to its annual report.
It’s not clear how often the federal government has used Section 215 to obtain browsing history, NBC News reported on May 15, 2020. They said tech companies are legally prohibited from detailing national security requests they receive.
The bill before Congress reauthorizes intelligence gathering that Congress first authorized decades ago through the Foreign Intelligence Surveillance Act.
The Senate passed its version 80-16 on May 14, 2020, after voting down two amendments — one to prevent surveillance act authority from being used against Americans and one to prevent the government from obtaining internet browsing and search history without a warrant (the one referenced in the claim).
One of the sponsors of the warrant amendment, Sen. Ron Wyden, D-Oregon, called Section 215 "the most controversial and dangerous provision" of the surveillance act.
"There is little information that is more personal than your web browsing history," Wyden, a Democrat who sponsored the amendment, told Vox.com for a May 13, 2020, story. "If you know that a person is visiting the website of a mental health professional, or a substance abuse support group, or a particular political organization, or a particular dating site, you know a tremendous amount of private and personal. … This level of surveillance absolutely ought to require a warrant."
The measure gathered bipartisan support but fell one vote short of passage, 59-37. Such amendments require a 60-vote threshold.
All of which brings us, finally, back to the claim that 27 Republicans and 10 Democrats in the Senate "voted for federal agencies to have access to your internet history without obtaining a warrant."
Firstly, this implies the senators voted to actively allow this, when in fact the vote was against banning it. In other words, they voted to maintain the status quo.
The reference to "your internet history" implies this is a widespread action allowing some kind of sweeping internet data-gathering, in the vein of the phone datamining Snowden revealed. But Section 215 allows this internet data gathering only in relation to foreign intelligence, international terrorism or clandestine intelligence activities investigation.
The post also implies unfettered access, when in fact government investigators must get a court to sign off on obtaining this data — even if getting approval requires a lower threshold than a warrant.
Finally, the Facebook post leaves readers with the impression this is an unusual allowance. But gathering internet data without a warrant is already widely allowable under basic criminal law.
"Under criminal law, browser history can be obtained if relevant to any criminal investigation," Baker said. "That’s probably the best reason not to adopt this (amendment). It makes no sense to say that no warrant or judicial review is needed to obtain such records in an investigation of securities fraud, but one is needed to investigate and try to stop an act of terrorism."
The House and Senate versions of the surveillance act include a provision specifying Section 215 doesn’t go beyond what can be used in criminal investigations, Baker noted. It says the government cannot seek an order in circumstances where "a warrant would be required for law enforcement purposes."
The page that created the viral post did not respond to requests for comment, and the libertarian group the post credited as a source declined to provide supporting evidence.
A viral Facebook post names 37 senators it says voted to allow "access to your internet history without obtaining a warrant."
There was indeed a vote against requiring warrants, but the fundamental implication in this post is that it enabled widespread and unrestricted access to Americans’ web activity. And that’s not accurate.
This data can only be obtained for an American after approval from a federal court, and only if it is related to a counterterrorism and counterintelligence investigation.
And this authority is nothing new — this power relative to foreign intelligence was granted almost 20 years ago under the Patriot Act. And similar data is accessible without a warrant in standard criminal investigations as well.
So we’re left with an element of truth, but a claim that ignores critical facts that would give a different impression. That’s our definition of Mostly False.
Facebook post, May 14, 2020
Email exchange with Stewart Baker, former general counsel of the National Security Agency, author, May 20-21, 2020
Email exchange with Robert Chesney, director of the Robert Strauss Center for International Security and Law at the University of Texas at Austin, May 20, 2020
Department of Justice, Office of the Inspector General, Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, December 2019
Department of Justice, Office of the Inspector General, Management Advisory Memorandum for the Director of the Federal Bureau of Investigation Regarding the Execution of Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons, March 2020
Administrative Office of the United States Courts, memo, April 20, 2020
The Hill, Senate votes to reauthorize intel programs with added legal protections, May 14, 2020
NBC News, Can the government look at your web habits without a warrant? Senators hope to clarify that, May 15, 2020
Vox.com, The Senate voted to let the government keep surveilling your online life without a warrant, May 14, 2020
DailyBeast.com, Mitch McConnell Moves to Expand Bill Barr’s Surveillance Powers, May 13, 2020
U.S. Senate, amendment 1586 to H.R. 6172, accessed May 20, 2020
U.S. Senate, amendment 1583 to H.R. 6172, accessed May 20, 2020
U.S. Senate, Roll Call Vote 116th Congress - 2nd Session, May 13, 2020
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