By Alex Dew
Artwork by Danielle Foti
The Senate voted May 13th to allow federal law enforcement agencies to continue monitoring civilians’ internet activities. A bipartisan-sponsored amendment would have halted surveillance of internet search history and browsing data first permitted by the notorious Patriot Act, passed during the anxiety-fraught days following the 9-11 terrorist acts. The amendment needed sixty votes to pass and only came in at 59, dealing a heavy blow to advocates for internet freedom. The vote is especially infuriating in light of the absence of four senators from the vote, at least one of whom, Bernie Sanders (D-VT), would likely have voted in favor of it. Senator Lamar Alexander (R-TN) has been quarantining since a staffer tested positive for Covid-19, and representatives for Sanders and the other two absent Senators, Patty Murray (D-WA) and Ben Sasse (R-NE), have not commented on their reasons for missing the vote. It really makes you wonder, have these people ever heard of Zoom?
The amendment was precipitated by the expiration of bulk surveillance measures first enacted by the Patriot Act in 2001 and later extended through December 2019 by the Freedom Act in 2015. Co-sponsored by Senators Steve Danes (R-Montana) and Ron Wyden (D-Oregon), the failed amendment would have reformed Section 215 of the Patriot Act by taking several measures:
- Removing the NSA’s legal authority to access cellphone data via cellphone carriers, a program that ended last year;
- Prohibiting the collection of cell site and GPS location information without a warrant;
- Prohibiting the collection of internet browsing history and other data without a warrant;
- Requiring any data collected that is irrelevant to an ongoing investigation to be destroyed within three years;
- Limiting the types of crimes for which data can be accessed under Section 215 to those involving espionage and terrorism; and
- Requiring federal agencies to publicly report more information, such as the number of Americans currently under surveillance.
Because the amendment failed to pass, federal agencies such as the NSA will be able to continue surveilling internet activity. In the past six years, the NSA in particular has gained unprecedented access to internet providers, facilitated by a network of companies called PRISM that includes Google, Facebook, Skype, and Apple. Agencies are supposed to obtain a warrant from the secret court established by the Foreign Intelligence Surveillance Act (FISA) in 1978, but the proceedings are classified and will remain that way. Whistleblowers have argued that the government can really “pull anything it likes” from PRISM’s servers.
In addition to voting against the internet amendment, the Senate also voted to extend other Patriot Act measures that expired in December 2019. With the nation consumed by the coronavirus pandemic, voting on extending these provisions had been put on the back burner until mid-May. These extensions continue some of the most troubling practices established by the Patriot Act:
- Roving wiretaps: With roving wiretaps, the government can continue surveilling people in the U.S. or abroad, even when they move or replace the device being monitored, without obtaining a new court order, as previously was required. Anyone who comes into casual contact with the surveilled person can also be monitored under the same order.
- Lone Wolf Investigations: This permits the government to surveil and investigate someone with no known terrorist ties.
Some pro-privacy amendments to the Patriot Act did pass, including measures that will:
- Expand the ability of an independent watchdog to monitor and participate in FISA proceedings;
- Forbid the FBI from using one FISA warrant to obtain call records, cellphone site data, and GPS location data on an ongoing basis; and
- Require the FISA court to declassify its decisions on warrants after 180 days.
While these changes are a small victory for those opposing civilian surveillance, many see them as too little, too late. Since former NSA employee Edward Snowden leaked a secret order the agency gave to Verizon Wireless in 2013, requiring the company to provide it with all of its cellphone data on an ongoing basis, backlash against civilian surveillance has been widespread. For many, the problem with this bulk surveillance is that it violates the Fourth Amendment to the Constitution, which requires the government to obtain a warrant and prevents any kind of search or seizure without one. The federal government previously used section 702 of FISA to justify warrantless data collection; this section allows collection of foreign intelligence via electronic surveillance without a court order, but only from non-Americans living outside of the country. The agencies argue that this section also allows collection of data from any American corresponding with foreign nationals without a court order because it falls under “foreign communication,” and millions of Americans get “swept up” in their “wide net,” according to the ACLU. Additionally, when they do obtain a warrant from FISA for a carrier’s data, these agencies can target hundreds of thousands of people per year for surveillance, on an ongoing basis
Perhaps most problematically, the NSA, FBI, and CIA use the PRISM program to “backdoor search” thousands of people, a practice in which they search for individuals’ past communications in PRISM companies’ servers, used to store the data indefinitely. Technically, any search on an individual would require a warrant, and the warrant would only allow the NSA to collect data starting from the date that the warrant was granted, not old data. The end result is “too much unchecked power in the hands of executive branch officials” and an “end-run around the Fourth Amendment,” says Patrick Toomey of the ACLU NSA Project. The amendments that did pass are likely insufficient protection against backdoor searches.
The legislation passed last week has many Sanders supporters wondering where he was when the vote took place. Sanders has long been an outspoken opponent of bulk surveillance, voting against the Patriot Act, the Freedom Act, and other extensions and additions to them. He has called NSA surveillance “out of control” and “Orwellian” and would have surely voted in favor of the amendment limiting internet surveillance, bringing the vote to the total needed to pass. It is still unclear where Sanders was when the vote took place, but he announced the same day of the vote that he and presidential nominee Joe Biden would be creating “unity task forces” that include Representative Alexandra Ocasio-Cortez (D-NY) and former Secretary of State John Kerry to advise Biden on policy. It is likely Sanders was working on the deal with Biden when the vote took place, a move that could be advantageous to Biden as he enters the home stretch of the 2020 Presidential Election and tries to pick up Sanders supporters.
Regardless of whatever important business Sanders was attending to, it seems strange that a senate vote on matters of constitutional importance affecting millions of people would be allowed to take place with him and three other senators absent, but it happens regularly – former presidential candidate Senator Marco Rubio (R-FL) is infamous for missing 234 of the 1,616 votes that have taken place during his tenure, and he certainly isn’t alone in this habit. The Constitution establishes that “a Majority of each [House] shall constitute a quorum to do business…” so as few as fifty-one Senators are required to present for a vote to take place. If fewer than fifty-one senators are present, then a “sergeant-at-arms” may be dispatched to retrieve the missing senators, who are charged for the cost of hiring him. But as long as the quorum is met, the show must go on. If a minimum of eleven senators indicate that they are ready to vote, a vote may proceed.
While this may be business as usual for the Senate, could it not be argued that the citizens of Washington, Vermont, Nebraska, and Tennessee were not equally represented during this vote? Equal representation is guaranteed to U.S. citizens by the “equal protection clause” of the Fourteenth Amendment, which says “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws” and has been interpreted to apply to the federal government as well as the fifty states. The necessity of a quorum makes sense, because, if attendance were mandatory for every single senator, nothing would likely get done, especially in the wake of the pandemic. But when the vote is so tight, it really makes one start to wonder. At the very least, someone should tell these people about Zoom.