The Senate on Wednesday easily amended a House-passed surveillance bill to increase legal protections for targeted individuals.
The action ensures the measure will need to go back to the House for further consideration.
The bipartisan amendment from Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick J. Leahy of Vermont would expand the mandate for appointments of outside legal counsel in Foreign Intelligence Surveillance Court proceedings to include those involving religious institutions, political figures and other particularly sensitive cases.
“We propose measures that would authorize and actively encourage judges in this secret court to seek independent amicus reviews in all sensitive cases — such as those involving significant First Amendment issues — thereby adding a layer of protection for those who will likely never know they have been targeted for secret surveillance,” Lee and Leahy wrote in a recent Washington Post opinion piece.
The 77-19 vote was an overwhelming victory for more civil-libertarian minded senators, after another amendment with overlapping support came up just short earlier in the day.
A bipartisan effort to block warrantless surveillance of web browsing search history came up one vote short of adoption in the Senate on Wednesday.
A total of 59 senators backed that effort, offered as an amendment by Republican Sen. Steve Daines of Montana and Democrat Ron Wyden of Oregon, to a broader overhaul of the Foreign Intelligence Surveillance Act. Under a prior agreement, 60 votes were required for adoption of the amendment.
But at least one absent senator, Democrat Patty Murray of Washington, would have supported the amendment. An aide said the senator was flying back to Washington, D.C.
Speaking on the floor ahead of the vote on his amendment, Daines said that the changes to surveillance authorities contained in the base bill already were not sufficient.
“We can and must protect our national security and protect our civil liberties by making targeted reforms that will keep everyday Americans, and their privacy, secure and continue to allow the government to go after the bad guys. The House bill does not go far enough,” he said. “Montanans sent me to Congress to get government off their backs, and I’m working not only to get government off their backs, but to get government out of their phones, out of their computers and out of their private lives.”
Speaking specifically about the amendment that came up short Wednesday, Daines argued that privacy rights should win out when it comes to browsing history on the internet.
“Browser data is some of the most personal and revealing information that can be collected on private citizens. Your internet search history can reveal extremely intimate information including personal health data, religious beliefs, political beliefs” Daines said. “I don’t think the government should have access to such private information without a warrant.”
Supporters of the House bill have been warning that adopting any amendments could interfere with the ability to reauthorize three surveillance powers that have already lapsed. The House passed the full authorization measure, while the Senate passed an extension in March. The two chambers never reconciled.
“The problem is this passed the House overwhelmingly,” Sen. Lindsey Graham, R-S.C., told reporters on Tuesday. “Sending it back to the House could shut things down, I’m afraid, when it comes to reauthorizing the surveillance programs we need.”
Graham, the chairman of the Senate Judiciary Committee, said he wanted to make clear to supporters of stronger protections that he would revisit the issue.
“We’re going to do a deep dive on the Carter Page event, and try to find ways to make sure that never happens again,” Graham said, referring to the use of warrants from the Foreign Intelligence Surveillance Court against the former Trump campaign foreign policy adviser.
Senate Majority Leader Mitch McConnell echoed Graham’s concerns about adopting amendments during floor remarks Wednesday morning.
“There is certainly no guarantee that another new version of this legislation would necessarily pass the House or earn the president’s support. This version has already done both,” the Kentucky Republican said. “We cannot let the perfect become the enemy of the good when key authorities are currently sitting expired and unusable.”
But unlike most other Senate floor business, McConnell does not always prevail when it comes to surveillance.
“This isn’t even a partisan proposition. Any administration could be tempted to collect the web browsing and internet search history of political enemies — politicians, activists, journalists,” Wyden said.
The amendments considered Wednesday attracted what’s become a typical mix of supporters from the right and left of the political spectrum, senators who often come together around civil liberties issues.