May 27, 2020 - 9:00 pm
Do Americans believe that government agents should be free to access their internet search histories without a warrant? If so, the Fourth Amendment is on life support.
That’s why it’s distressing to see Congress dither on a bipartisan amendment to the USA Freedom Authorization Act that would restrict the FBI and other federal law enforcement agencies when it comes to using a secret court to obtain private web and browser information from American citizens.
On Monday, Reps. Zoe Lofgren, D-Calif., and Warren Davidson, R-Ohio, announced they had revived an amendment that would make it more difficult for federal officials to obtain such information from third-party internet service providers. In early March, a similar provision had died in the Senate by a single vote when several senators who favored the legislation were unable to participate because of the coronavirus outbreak.
The Lofgren-Davidson proposal “would require a Foreign Intelligence Surveillance Act warrant to be obtained before gathering internet activity if the government is not sure if the subject is a U.S. person but might be,” The Hill reported. “It would also compel the government to guarantee that no U.S. person’s IP addresses or identifiers would be disclosed before ordering a service provider to provide a list of everyone who has visited a particular website.”
By Tuesday, however, critics were arguing that the new language didn’t go far enough and could be interpreted to allow the FBI to collect such data incidentally. The attacks led to speculation that the amendment might not survive at all.
But it benefits no one to allow the perfect be the enemy of the good.
The Fourth Amendment holds that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause.” How does it comport with the Bill of Rights to allow law enforcement officials to snoop on Americans’ computer habits without probable cause or the requisite warrants?
If House Democrats prefer to revive the language of the stronger Senate amendment, fine. If not, however, the version offered by Reps. Lofgren and Davidson is at least a step in the right direction and would be a reasonable alternative. Fighting terrorism and protecting our fundamental constitutional rights do not have to be mutually exclusive goals.
Republicans and Democrats don’t agree on much these days, but surely they can come together to embrace the Fourth Amendment and protect their constituents from warrantless government inspections of their online activity.