Our digital privacy is at stake in the Senate

The Senate this week debates an important amendment to the Foreign Surveillance Intelligence Act (FISA) by Sens. Steve Daines (R-Mont.) and Ron Wyden (D-Ore.) that would broaden a prohibition on warrantless surveillance by the government, from our online searches to our geolocation history.

This debate confronts us with an awkward question: Who knows us best? Do we, or others with access to information gathered from the internet? Unless you’ve affirmatively turned off the location feature on your smartphone, your Android or iPhone device keeps a record of your movements, as do many of the apps on your touchscreen. Your phone or other digital devices also know what purchases you have made — whether for a medical condition you’d rather keep private, or a donation to a favorite political cause.

And search engines, unless you’ve affirmatively limited their memory in your settings, have a good picture from your web searches and app activity that you have been thinking about.

Unfortunately, information about you stored by these companies is available to the government without the need for a search warrant based on probable cause. The appropriateness of allowing the government to warrantlessly surveil our every move and action is the issue Sens. Wyden and Daines are forcing the Senate to examine.

Such powerful technological capabilities embedded in our devices were devised for the benign purposes of enhancing search, selling ads and providing retail opportunities. But China demonstrates how this seemingly benign technology can give the Communist Party access to the actions, statements and movements of a vast population. One could call it Orwellian, but George Orwell never quite imagined anything like that. In America, aspects of a surveillance state are closer to reality than most realize.

The Fourth Amendment protects our “effects” against searches without a probable cause warrant. Yet the government’s approach is that our digital records are fair game if accessed under a claim of “national security.”

Just last year, attorneys for the Department of Justice testified before Congress that they apply a “third-party doctrine” when it comes to Section 215 of the Patriot Act, commonly known as the business records provision. Under this doctrine, any information we give away to a third party — such as a search engine, credit card companies, DNA testing companies, security companies monitoring video from home security and doorbell cameras — is no longer ours. Since we have given this information to a business, the government asserts a right to freely troll through our data as long as it meets a vague standard of “relevance” to national security.

As Justice Sonia Sotomayor observed in a Supreme Court opinion regarding the use of geolocation history in a criminal case, “This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Yes, the FBI and other law enforcement agencies need the authority to access such information to protect us against foreign spies and terrorists. Perhaps location data, properly managed, will provide insights on countering the spread of the coronavirus. But can we simply trust the government to use good judgment in protecting our private location history, or separating, say, suspected terrorists who may be shopping for pressure cookers from fishing expeditions against targeted people, faiths or political organizations?

Recent work by Department of Justice Inspector General Michael Horowitz suggests the answer is “no.” He amply documented a monumental breach of trust committed by the FBI in its FISA warrants against Carter Page, including the submission of a doctored document in sworn testimony. Horowitz’s sampling of 29 other FISA applications involving U.S. citizens found many deficiencies with each one.

It is clear we cannot trust the intelligence bureaucracy to keep from colliding with the Constitution. Congress must provide stronger guardrails and splash them with fluorescent paint. So far, Congress has not done so. The House recently reauthorized Section 215 with useful prohibitions on accessing your phone’s geolocation features and GPS without a probable cause warrant. But it does not prohibit government trolling through our search histories. 

This is where the proposed Daines-Wyden amendment is needed to protect some of our most personal information. It prohibits the warrantless surveillance of our online search histories, a gaping hole in the House bill.

We can balance the need to protect Americans against the many threats to our safety while keeping the government itself from becoming a threat to our privacy. Surely the Senate can agree to require a judge to sign a warrant based on probable cause before our most private information can be seen by the government.

Robert Goodlatte is a former congressman from Virginia and chairman of the House Judiciary Committee. He is the senior policy adviser for the Project for Privacy and Surveillance Accountability (PPSA), a Washington-based civil liberties organization.