On April 21, 2021, Senators Wyden, Paul, Leahy, Lee, as well as Majority Leader Schumer and 15 other Senators introduced the Fourth Amendment Is Not For Sale Act, a bipartisan bill that would prohibit intelligence and law enforcement agencies from purchasing information about people in the United States from data brokers and establish the “exclusive means” by which the government may obtain such data. House Judiciary Chairman Nadler and Representative Lofgren have also introduced the bill in the House. Information covered by this bill includes: location information, which the Defense Intelligence Agency and others have concluded they may by in “bulk” without a court order or statutory authorization; internet browsing and search histories, like that covered by the Daines-Wyden amendment; and other sensitive information.
Section 215 of the PATRIOT Act — as well as the “lone wolf” and “roving wiretap” authorities — expired on March 15, after former Senate Select Committee on Intelligence Chairman Richard Burr announced he would “let us go dark” rather than permit the Senate to vote on amendments to H.R. 6172, the USA FREEDOM Reauthorization Act. House Speaker Nancy Pelosi subsequently declined to bring a 77-day reauthorization of the authorities to the floor, which would have provided time for amendment votes without expiration. The authorities have now been sunset for over one year.
On May 28, 2020, the House requested a conference with the Senate to resolve differences between the two bills. The House did not vote on any amendments nor on the Senate-passed version, which includes the Lee-Leahy amendment. The Senate adopted the Lee-Leahy amendment, which strengthens the independent amici that appear before the Foreign Intelligence Surveillance Court, 77-19. The amendment specifically protects religious groups and the press. The Senate has not yet voted on whether to send the USA FREEDOM Reauthorization Act to conference.
The Daines-Wyden amendment prohibits the use of Section 215 for warrantless surveillance of internet browsing and search histories. The one-sentence amendment is available here. A one-page write-up is available here. Over 80 organizations called for the House to allow a vote on the Daines-Wyden amendment.
Resources on the Daines-Wyden amendment:
On May 13, when the Senate adopted the Lee-Leahy amendment, 59 Senators — 24 Republicans and 35 Democrats — also voted in support of the Daines-Wyden amendment. Though two more Senators supported the measure, one being a cosponsor, they were unable to be present for the vote.
On May 20, Senator Wyden sent a letter to the acting Director of National Intelligence requesting clarity on whether public reporting requirements would capture surveillance of online activity, drawing significant attention to loopholes in the original USA FREEDOM Act’s transparency reforms, for instance the lack of a reporting requirement for total records collected under Section 215 (discussed in our fact sheet, comparison sheet, and overview report).
Selected media coverage:
"Lawmakers Demand a Vote to Stop FBI Collecting Web Browser History Without a Warrant" (Gizmodo)
"Congress Has No Idea How Much Web Browsing Data the FBI Collects" (Vice)
"Justice Department IG Finds Widespread Problems With FBI's FISA Applications" (NPR)
"Can the government look at your web habits without a warrant? Senators hope to clarify that." (NBC News)
"Disputed N.S.A. Phone Program Is Shut Down, Aide Says" (New York Times)
Developments before May 4 are discussed in our brief, “Foreign Intelligence Surveillance Act (FISA) Developments in 2020.” Download the PDF here.
The FBI and NSA use Section 215 of the USA PATRIOT Act to collect vast amounts of information about people in the United States without a warrant. In 2018, under only one of two Section 215 provisions, the government collected 434,238,543 call records. That program, like its predecessors, was shuttered due to unlawful overproduction of records. The vast majority of these records relate to people who are not the targets of any investigation or suspected of wrongdoing. Section 215 authorizes the government to surveil much more information, however, including medical information, purchase records, and any other “tangible things.” The government discloses few details about those uses.
Timeline of Congressional activity
In a whirlwind after the House passed the bill on March 11:
Sens. Daines, Leahy, Lee, Paul, Udall, and Wyden stopped the bill from moving without amendment, arguing it reauthorized the three expiring FISA authorities without adequate privacy safeguards.
Former SSCI Chairman Burr objected, saying “I’ll let us go dark” rather than allow votes on amendments.
After expiration, Senate leadership agreed to a vote on privacy amendments, and passed a 77-day reauthorization (through the end of May).
Then a Spokesman for Speaker Pelosi called the amendment agreement “risky” (and the House never brought up the 77-day reauthorization). A spokesman for McConnell shot back: “There’s no way to spin it. Speaker Pelosi’s decision to let House leave without acting on a FISA extension was reckless” (sic).
On May 13, the Senate adopted the Lee-Leahy amendment, 77-19 (it protects religious groups and the press). The Daines-Wyden amendment (prohibiting warrantless surveillance of internet browsing and search histories under Section 215) failed by one vote on a 60 vote threshold.
Then the House agreed to vote on warrantless surveillance of internet activity, but a different version. HPSCI Chairman Schiff told the Times the new version had an inscrutable hole in it. Responding to Schiff, Sen. Wyden said “It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill.” (Notably, Wyden also asked the ODNI if dragnet surveillance of internet activity would be captured in transparency reporting.)
President Trump tweeted opposition to the reauthorization, and House leadership pulled the entire bill.
With cratered support for the reauthorization, the House sent it to conference, while both parties’ leaderships championed the only difference between House- and Senate-passed USA FREEDOM.
The authorities are still available for investigations that predate March 15, and for investigations into activities that predate March 15, but we don’t know how broad that carveout is. To date, no Representatives have had a chance to vote on any amendments to the underlying bill.