Senate Rejects Amendment Expanding FBI Surveillance Powers By Narrow Margin

Earlier this month, FBI Director James Comey announced that expanding the scope of data that can be collected through national security letters (NSL) would be the FBI’s primary legislative objective.

To recap, national security letters or NSLs are documents that the FBI can send to companies (such as telephone and Internet service providers) demanding customer records and information. NSLs frequently come with a gag order, meaning that companies cannot disclose to users that they have received an NSL or that they are turning over customer data to the FBI. Even worse, the FBI does not need to receive any form of judicial approval before issuing an NSL.

NSLs are dangerously lacking judicial oversight and have repeatedly been used illegally. Expanding FBI surveillance powers by expanding the amount of data that can be collected through NSLs would be irresponsible and severely damaging to privacy rights guaranteed by the Fourth Amendment.

Nonetheless, Republican senators immediately responded to Comey’s request by introducing NSL scope-expanding amendments on a number of quasi-related bills. If enacted, these amendments would allow the FBI to use an NSL to obtain an individual’s browser history, IP address, how long they visited any given website, and their email headers.

Dissent Newswire reported on Tuesday that Senator John Cornyn was attempting to add an NSL-expanding amendment to the Electronic Communications Privacy Act Amendments Act of 2015. Cornyn’s amendment made civil liberties organizations, including the ACLU and Amnesty International, threaten to withdraw their support for the ECPA if it was not removed. Sponsors of the bill then pulled it from consideration while they worked to remove the amendments.

With the Cornyn amendment’s chances momentarily dashed, Senator John McCain was passed the NSL torch. McCain proposed an amendment to a criminal justice appropriations bill that would make a “lone-wolf” provision in the Patriot Act permanent and expand NSL data-collection.

On Wednesday, McCain’s amendment (#4787) failed to receive a vote for cloture, with 58 in favor and 38 against. McConnell then changed his vote on the amendment from yes to no, so that he could file a motion to reconsider. The Senate will likely vote on the amendment again soon, and reports indicate that Republicans are confident that they will receive the votes needed for cloture, as Senator Dianne Feinstein, who supports the provision, missed the vote yesterday.

If McCain’s version is not added to the criminal justice funding bill during the motion to reconsider, we can expect this measure to be continually proposed as an amendment in the coming weeks.

Not a Reaction to Orlando

In the aftermath of the shooting in Orlando, some legislators are framing NSL data-collection expansion as an effort to provide law enforcement with the necessary tools needed to combat terrorism.

This is incorrect.

• The FBI has been pushing for NSL “reform” since the Justice Department criticized and then limited NSL use in 2008.
• Chairman of the Senate Intelligence Committee Richard Burr conceded that the McCain amendment would not have stopped the shootings in Orlando or San Bernardino.
• No efforts are being made in these amendments to add judicial review to the NSL process, which is suspect when court approval would undoubtedly be given in the case of a legitimate terrorist threat.
• It has been shown time and time again that companies are more than willing to provide consumer information when law enforcement indicates that it is an emergency.
• The justifications for these amendments are reminiscent of the arguments and circumstances surrounding the Patriot Act (which some of these amendments are trying to extend).

As we’ve learned, if a law enforcement “wish list” has been rejected multiple times for civil liberties violations in times of peace, then it should not be passed in times of tragedy without allowing for extensive debate and judicial safeguards.