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FACT CHECK
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Fact check: Did senators vote to allow access to web history? Only for counterterrorism

Eric Litke
USA TODAY

Claim: 37 senators "voted for federal agencies to have access to your internet history without obtaining a warrant."

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 this year amid GOP gridlock.

The legislation has drawn criticism over the breadth of surveillance it enables.

The U.S. House reauthorized the three lapsed intelligence programs this March, 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 Facebook post on the subject has been shared almost 10,000 times.

The post from Being Libertarian named the senators who opposed the amendment – including Senate Majority Leader Mitch McConnell, R-Ky., and Tim Kaine, D-Va. – 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 the claim implies, or even a new thing. 

More:Senate passes FISA deal reauthorizing key surveillance powers

The background

The statement implies this was a vote to enable internet history access without a warrant. 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).

That clause sunset on March 15, but it includes a broad grandfather clause that allows investigators to still use its powers for investigations that began before that date or new investigations into events that occured before that date.

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 limitations, Chesney said.

For an American, the power may be used only to obtain web history related to a counterterrorism or counterintelligence investigation. (For a foreign national, 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 it uses supporting documentation from the FBI and NSA, Baker said.

The foreign intelligence court has come under fire after recent revelations. 

Department of Justice Inspector General Michael Horowitz returns from a break to continue testifying at a Senate Judiciary Committee hearing on Capitol Hill in Washington, Wednesday, Dec. 11, 2019, on the Inspector General's report on alleged abuses of the Foreign Intelligence Surveillance Act. (AP Photo/Susan Walsh)

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. It said tech companies are legally prohibited from detailing national security requests they receive.

The amendment

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, 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).

Sen. Ron Wyden, D-Ore.

One of the sponsors of the warrant amendment, Sen. Ron Wyden, D-Ore., 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 story. “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.

Breaking down the claim

All of which brings us 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 data mining Edward Snowden revealed in 2013 through publication of classified information. But Section 215 allows this internet data gathering only in relation to foreign intelligence, international terrorism or clandestine intelligence activities investigation.

Opinion:Congress has the chance to reform the Patriot Act. They should take it.

The post also implies unfettered access, but 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.

Our ruling: Partly false

We rate this claim PARTLY FALSE, based on our research. There was indeed a vote against requiring warrants, but the fundamental understanding 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.

Our fact-check sources

Contact Eric Litke at (414) 225-5061 or elitke@jrn.com. Follow him on Twitter at @ericlitke.

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