Senate rejects controversial FBI surveillance measure

In the wake of June’s tragic Orlando attacks, the US Senate voted on a controversial measure to expand the government’s surveillance ability today.

The surveillance measure, an amendment to a government spending bill, was proposed by Senate Armed Services Committee Chairman John McCain of Arizona and Senate Intelligence Committee Chairman Richard Burr of North Carolina, both Republicans.

The measure has two parts, the first of which would expand the existing Patriot Act, allowing the Federal Bureau of Investigation to use an administrative subpoena called a national security letter to access online communications and browsing information.

The second part would make permanent the “lone wolf” provision, which allows the FBI to watch suspected terrorists (including those without known terrorist group connections). This provision was originally due to expire in 2019.

“This is a larger issue than just a terrorism issue,” Neema Guliani, a legislative council with the American Civil Liberties Union (ACLU), tells The Christian Science Monitor, “this reaches every person who has ever sent an email or browsed a website.”

Under the new measure, the FBI would be able to gather sensitive internet information – the to and from lines on emails, browser histories, and IP addresses – without ever seeing the inside of a courtroom or obtaining a warrant.

“This would be the most significant expansion of surveillance authority since the FISA Amendments Act of 2008 passed legalizing warrantless wiretapping and mass surveillance of internet communications,” writes Robyn Green, Policy Counsel for New America's Open Technology Institute, in an email to the Monitor.

In the past ten years, Ms. Guliani says, the government has issued 300,000 national security letters. And according to Guliani, the Justice Department's inspector general reports have found that the authority granted by those letters has been widely abused by law enforcement officials, who have used them to request information outside their realm of authority, among other things. 

Yet despite concerns about privacy violations, at least one inspector general report found that national security letters were effective tools for countering terrorist activities, particularly after the passage of the Patriot Act. 

FreedomWorks, a Washington, D.C., advocacy group that seeks to promote "less government, lower taxes, and more economic freedom," wrote in a statement Wednesday that such a measure could violate the Fourth Amendment’s protections against unreasonable searches and seizures.

Opponents have also criticized the timeframe with which this legislation has been proposed and moved forward.

“This is very much an attempt to move something quickly forward that hasn’t had sufficient debate,” says Guliani, adding that the Patriot Act’s swift passage in October 2001 led to many confusion about what exactly some of the provisions meant for Americans.

Sen. Ron Wyden (D) of Oregon accused Senate Republicans of “pushing fake, knee-jerk solutions that will do nothing to prevent mass shootings or terrorist attacks,” Reuters reports.

Proponents say that the amendment is necessary to ensure national security. In an increasingly digital world, the measure’s backers say, law enforcement efforts can be hampered by restrictions on their information gathering authority.

“Our failure to act to grant this authority, particularly in the wake of this terrible tragedy in Orlando, would be inexcusable,” Senate majority whip John Cornyn (R) of Texas told his fellow Senators on Tuesday. “This is something the FBI director appointed by President Obama had said he needs. He said this is their number one legislative priority. We owe it to those on the front lines of our counter-terrorism efforts to get them what they need.”

Critics say that despite claims by its proponents, this bill would change little in terms of preventing attacks like Orlando.

“The FBI had the shooter under investigation twice, and according to FBI Director Comey himself, they obtained his transactional records during the course of their investigation,” says Ms. Greene. “Expanding the NSL authority doesn't mean the FBI will get access to new records; it means the FBI will access those records without any judicial approval or oversight.”

Furthermore, the FBI has not once used the “lone wolf” authority since its creation 12 years ago, Greene says, and it would have been useless in the Orlando case. The “lone wolf” authority that today’s measure would have made permanent applies only to non-US Citizens. Born on Long Island, the Orlando shooter was an American citizen.

There have been several other attempts to pass similar measures, including an attempt to change the Electronic Communications Privacy Act.

Despite Senator McCain’s and Senator Burr’s confidence that they had the sixty votes necessary to pass the measure, the bill failed today in a vote of 58-38.