Last week, we objected to the Senate moving forward on the 2017 Intelligence Authorization bill. We are concerned that this bill would undermine a federal board that serves as an independent watchdog for intelligence agencies. We are even more concerned that this bill includes an unnecessary, sprawling expansion of the FBI’s ability to spy on what websites Americans visit and who they talk to on email or in text messages and chats—all without obtaining a warrant, or any court oversight whatsoever.
Given what web browsing history can reveal, there is little information that could be more intimate. 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 information about him or her. That’s what you get when you can get access to their web browsing history without a court order.
The reality is that getting access to people’s web browsing history is almost like spying on their thoughts. This level of surveillance absolutely ought to come with court oversight. Yet a number of senators are moving to go in the opposite direction. The annual intelligence bill would let any FBI field office issue something called a National Security Letter to demand this information. These letters are essentially administrative subpoenas and often come with gag orders that prevent the company that receives them from discussing them publicly.
As members of the Senate Intelligence Committee, we are regularly briefed on very serious threats to our country. The existence of these threats is not in question. And given these dangers, it is critically important that law enforcement and intelligence authorities have the tools they need to protect the American people. Policymakers and the public are rightly concerned about the safety and the well-being of the American people. If these electronic records were unavailable in all circumstances, that would be a serious concern for law enforcement.
But the FBI already has at least two separate ways they can quickly obtain these electronic records with court oversight. First, under the Patriot Act’s section 215, the FBI can get a court order from the Foreign Intelligence Surveillance Court to obtain a suspect’s electronic records. The president’s surveillance review group, which included former top intelligence officials, said this kind of court oversight should be required for this kind of information. Second, in emergency situations where the FBI believes it needs to move immediately, it already has the authority to get these records first, and then settle up with the court afterward. This authority comes from section 102 of the USA FREEDOM Act, which is based on language Sen. Wyden authored and we both strongly supported.
Given that the FBI and intelligence officials already have these tools, Congress has an obligation to be very careful about making such a big expansion to national security letters. And yet, the Republican leaders in this Congress have repeatedly tried to sneak this provision through with little debate. They added it to the intelligence bill in a closed-door vote. They attempted to add it to an email-privacy bill last month. And just two weeks ago they tried to add it as an amendment to a spending bill. Our side won by a single vote. But this fight isn’t over. The bill’s supporters have said they fully intend to bring it back this year—maybe as soon as next week. If they can’t win on a stand-alone vote, it could even be attached to a larger package of bills.
In the aftermath of mass shootings in places like Orlando and San Bernardino, our constituents make it clear that they want policies that protect both their security and their privacy. Unlike many policymakers, they know these values aren’t mutually exclusive. This kind of rushed proposal doesn’t do much to advance security, and it doesn’t protect core American liberties. The way to protect both security and liberty is to require court oversight for intrusive government surveillance while giving the government the ability to act quickly in emergencies. Allowing government agents to see Americans’ web browsing history without court oversight is a half-baked solution that won’t make our country any safer, and the American people deserve better.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.