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The crucial privacy debate happening in the shadows of the coronavirus

Should the government have carte blanche to dig into the brains of your phone and computer?

A pandemic is gripping the globe. The American economy is posting numbers worse than the Great Depression. Congress has spent roughly $3 trillion in the last two months and may spend $3 trillion more. So we can all be forgiven for letting an authorization bill or two slip under the radar of issues to alarm us. (Did I mention the murder hornets? Never mind.)

Take a break from those headlines for a minute to focus on HR 6172, the USA FREEDOM Reauthorization Act, which has passed both the House and Senate, but is back in the House for consideration since the two chambers have yet to agree on identical language. The legislation would reauthorize and amend crucial portions of the Foreign Intelligence Surveillance Act, or FISA, the law that governs intelligence agencies’ search and surveillance activities in national security investigations. Although the Senate passed an amended version of the bill last week to expand oversight of the FISA court process, a separate amendment from Oregon Democrat Ron Wyden and Montana Republican Steve Daines related to internet search history failed by a single vote.

Does all of this matter to your average bear, sheltering in place somewhere in America, working from the kitchen table and Googling everything from coronavirus symptoms to brownie recipes to “How to file for Paycheck Protection Program funds”? It matters quite a lot, actually, because today the federal government has the legal authority to access those very Google searches, along with reams of internet browsing history, all without a warrant from a judge to rule that it’s necessary and proper. If Congress does not change the bill as it’s written, the government will keep the right to your browser and search history, even if you’re not accused of committing a crime. 

‘Reading minds’

As Wyden said on the Senate floor last week, with everything from health history and political views to employment and relationships embedded in people’s internet searches, monitoring a person’s browser history is “as close to reading minds as surveillance can get.”  

With hundreds of millions of Americans practically living their entire lives online during the coronavirus pandemic, Wyden added, “Don’t those Americans deserve some measure of privacy? Don’t they deserve better than their government snooping into the websites they visit? How can this be that the government can spy on them when they’re not suspected of doing anything wrong? … How is this OK in America?”

Daines may be on the other side of the aisle from Wyden, but they’re on the exact same side of this issue. Daines said during last week’s debate that he wants law enforcement to be able to “go after the bad guys” but that shouldn’t come at the expense of his Montana constituents’ privacy. “I am 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. At the end of the day, this is about protecting privacy.”

Even the president, Daines said, is not protected as the laws are written today, pointing to the surveillance of Trump campaign aides during the 2016 presidential race. “What happened to President Trump can happen to anybody, for any purpose, and that is a very serious problem,” he said.  

As CQ Roll Call’s Niels Lesniewski reported in detail, the Wyden-Daines amendment got 59 votes last week, with 24 Republicans and 35 Democrats voting in favor. But it remained one vote shy of passage with Washington Democrat Patty Murray away from the Capitol. Her office said she likely would have voted for the amendment had she been present for the vote.  

Strange bedfellows

Since then, a coalition of more than 60 groups, including the American Civil Liberties Union, FreedomWorks and Human Rights Watch, has sent a letter to Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy and Rules and Judiciary committee leaders, urging them to state definitely that the FBI should not be allowed to spy on Americans’ internet activity without a warrant. Any time FreedomWorks and the ACLU are in the same place on the same issue, it’s time to pay attention.

So pay attention to this — the effort isn’t over yet, but it’s close.  Two House sources familiar with the negotiations said that California Democrat Zoe Lofgren and Ohio Republican Warren Davidson have been looking for House support for language that mirrors the Wyden-Daines amendment and would eventually be matched back up with the Senate, where 60 votes should be waiting. Like the Senate, House proponents are looking for a bipartisan coalition of Freedom Caucus-minded privacy advocates and Progressive Caucus-friendly civil libertarians. It’s a last attempt to use the rare bipartisan agreement, even in an election year, to address this crucial, but under-the-radar issue.  

Should the government have carte blanche to dig into the brains of your phone and computer? Do the risks to national security outweigh Americans’ expectation of privacy for what we are thinking, saying, and doing online? Is there a middle ground to strike that balance? It’s a debate that deserves far more attention and mind space from the public than it’s been getting. If you don’t believe me, just Google it.

Patricia Murphy covers national politics for The Daily Beast. Previously, she was the Capitol Hill bureau chief for Politics Daily and founder and editor of Citizen Jane Politics. Follow her on Twitter @1PatriciaMurphy.

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