Enlarge / Rep. Zoe Lofgren (D-Calif.), center, on Capitol Hill in March 2020.Tom Williams/CQ-Roll Call, Inc via Getty Images

An amendment to protect Americans' search and browsing records from government snooping is gaining momentum in the House of Representatives. A vote on the proposal could come as soon as Wednesday.

Two weeks ago, the Senate passed legislation renewing a controversial Patriot Act spying provision known as Section 215. Privacy advocates in the Senate proposed an amendment prohibiting the FBI from using Section 215 to obtain Americans' search and browsing histories. The proposal was supported by 59 out of 100 senators—one fewer than the 60 votes required for the amendment to pass under the Senate's dysfunctional rules.

Now the bill has moved to the House of Representatives, where privacy advocates are hoping to have more success. The House doesn't have the same supermajority rule, so it shouldn't take more than a simple majority to pass the amendment. That would set up a showdown with the Senate about the final text of the bill.

Section 215 was originally passed in 2001 in the wake of the September 11 terrorist attacks. It gave the FBI the power to obtain "any tangible thing," including "books, records, papers, documents, and other items," without a warrant. The provision is limited to foreign intelligence activities; it's not supposed to be used for ordinary criminal cases. But civil liberties groups have long objected to its breadth and its lack of judicial oversight.

Section 215 expired in March, and Congress has been working on legislation to renew it. While the Senate bill included some minor privacy protedctions—including protections for cell phone location data that largely mirror a recent Supreme Court precedent—the most important fight has been over privacy for browser and search histories.

Amendment protects Americans browsing and search privacy

Rep. Warren Davidson (R-Ohio) in 2019.
Enlarge / Rep. Warren Davidson (R-Ohio) in 2019.Bill Clark/CQ-Roll Call, Inc via Getty Images

The lead sponsors of the search privacy amendment in the House are Rep. Zoe Lofgren (D-Calif.) and Rep. Warren Davidson (R-Ohio). Last Friday, they secured a commitment from House leadership to allow a vote on a search privacy amendment when the broader Section 215 bill comes up for a vote this week. The two representatives then spent the weekend hashing out the details of their amendment.

On Tuesday, Lofgren announced that she and Davidson had reached an agreement with two key House leaders—Intelligence Committee Chair Adam Schiff and Judiciary Committee Chair Jerrold Nadler—on the contents of the amendment.

The amendment is just three pages long. Its key provision states that an application under Section 2015 "may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information of United States persons."

A press release from Lofgren's office says the amendment is designed to ban "incidental" collection of Americans' search or browsing records. This has long been a bone of contention in surveillance debate. An intelligence agency might officially be spying on a foreigner but do it in such a way that a lot of Americans' private information gets swept up in the process.

The Lofgren/Davidson amendment would strengthen rules against this kind of thing, helping to ensure that "foreign" intelligence surveillance is actually limited to foreigners. Intelligence agencies could still spy on Americans' browsing histories if they needed to, but they'd need to convince a judge to Read More – Source

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