Bucking colleagues, Hassan and Shaheen help preserve warrantless online surveillance 

  • Shaheen, Hassan at an event Monday.

Monitor staff
Published: 5/15/2020 5:25:32 PM

New Hampshire’s two Democratic senators helped preserve warrantless surveillance by federal authorities of private internet browsing history Wednesday, voting against the majority of their caucus and frustrating some civil liberties advocates.

After a 59-37 vote, an amendment to the Patriot Act that would have given greater protection to Americans’ browsing and search history from law enforcement surveillance narrowly failed to clear a 60-vote threshold in the Senate, effectively dooming it.

New Hampshire Sens. Maggie Hassan and Jeanne Shaheen joined eight Senate Democrats and 27 Republicans, including Senate Majority Leader Mitch McConnell in opposition to the amendment, which failed to pass by a single vote.

The vote was part of a broader reauthorization of the 2001 Patriot Act, which McConnell has moved to expand. The Patriot Act already allowed for phone wiretaps and other forms of surveillance; the reauthorization would expand that into search engine history and internet browsing history with approval from secret courts. 

The bi-partisan amendment – put forth by Sen. Rob Wyden, a Democrat, and Sen. Steve Daines, a Republican – sought to create a higher standard and force federal authorities to show probable cause in order to obtain browsing data.

In a statement, a spokeswoman for Hassan said she did not support the amendment “because it would have made it more difficult for law enforcement to investigate and prosecute terrorists than it currently is for them to investigate and prosecute other types of criminals.”

Similarly, Shaheen’s staff said she supported the reform of the Patriot Act, but was wary of weakening law enforcement’s investigative powers

“Senator Shaheen voted against the Wyden-Daines amendment because it would have set an unreasonable legal threshold for terrorism investigations than for other crimes and could undermine law enforcement’s ability to protect our nation from national security threats.”

The New Hampshire senators’ decision to vote ‘no’ drew criticism from the American Civil Liberties Union of New Hampshire, which called the vote “disheartening.”

“We are deeply disappointed that Senators Shaheen and Hassan voted against a bipartisan amendment that would have required a warrant to obtain browser and search histories,” said Jeanne Hruska, policy director at the ACLU-NH. 

Hruska said the warrants are a standard part of law enforcement and are necessary to regulate  “which can disclose incredibly personal and private information about an individual.

“Our senators’ votes are particularly disheartening as the final tally was just one vote shy of passage,” Hruska said “Their votes made the difference between this critical protection being provided and it not.”

One notable senator, Vermont Sen. Bernie Sanders, was absent from the vote, angering some supporters on the left. 

The Senate did approve a separate amendment by Sens. Mike Lee and Patrick Leahy to increase oversight of the Foreign Intelligence Surveillance Court, a secret court that approves requests to initiate domestic surveillance by intelligence agencies. That amendment would create a “friend of the court” who is versed in “privacy and civil liberties expertise” and who would sit in on deliberations before the court.

Shaheen and Hassan joined the majority in a 77-19 vote decision to add that portion in. Hruska praised that vote, saying the organization was “relieved.”

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