(TMU) – The birth of the modern security state took place in 2001 after the 9/11 attacks. Since then, there has been a slow but steady federal push for draconian surveillance powers. It has come from all branches of government–congressional, executive, and judicial–and from both political parties.
Now that we’ve reached the second major inflection point of the 21st century–COVID-19–it would be easy to not see the newest push for a more expansive use of the Patriot Act. But it’s there in two new provisions that would dramatically strengthen the government’s ability to intrude into our digital lives.
The first amendment to the Patriot Act introduced by Senate Majority Leader Mitch McConnell will allow the FBI to warrantlessly collect records on the web browsing and search histories of American citizens. The second amendment–a naked reaction to the Mueller investigation and FISA problems–permits AG Barr to perform an annual review of all FBI FISA submissions.
While the second amendment of the Patriot Act is ostensibly a balance check intended to control rogue FBI investigations, many civil liberty and digital privacy advocates view it as a voracious power grab by a rogue Attorney General, which happens to extend potentially lawless surveillance to all Americans and political enemies.
“Under the McConnell amendment, Barr gets to look through the web browsing history of any American — including journalists, politicians, and political rivals — without a warrant, just by saying it is relevant to an investigation,” Senator Ron Wyden told The Daily Beast.
“These amendments would pretty much guarantee the ability of an incumbent administration to spy on its political opponents without consequence.
“It is open season on anybody’s most personal information.”
First Amendment activists warn the new provisions will have a chilling effect on the media, preventing journalists and whistleblowers from exposing abuses of power.
Sean Vitka, senior policy council at Demand Progress, stated:
“These are two of the most cynical attempts to undermine surveillance reform I’ve ever seen, and they threaten to make a Patriot Act reauthorization even worse after a process that has so far successfully prevented any member of Congress from fixing the underlying bill.
“McConnell is literally trying to take a privacy safeguard designed for the press and religious groups and instead give it only to politicians and people suspected of being foreign agents.”
A bipartisan amendment demanding probable cause be shown prior to any digital surveillance was proposed by Wyden and Sen. Steve Daines (R-Mont.) but it was voted down.
The 10 Democrats who joined GOP in defeating amendment to stop FBI warrantless surveillance of web browser history: Carper, Casey, Feinstein, Hassan, Jones, Kaine, Manchin, Shaheen, Warner and Whitehorse. Joined 2 Republicans & a Democrat in not showing up to vote: Bernie Sanders
— jeremy scahill (@jeremyscahill) May 13, 2020
While McConnell’s amendment ostensibly blocks the FBI from collecting the ‘content’ of web browsing, the interpretation of ‘content’ in the context of digital Internet searches has never been settled in court, meaning that AG Barr would be able to wield the power of his office to determine the meaning of a web search.
“These amendments would pretty much guarantee the ability of an incumbent administration to spy on its political opponents without consequence,” wrote Charles Pierce at Esquire.