The Senate on Wednesday voted down an amendment that would allow the FBI to gain access to citizens’ email, web, and other electronic records through the issuance of a secret National Security Letter.
The vote was seen as a victory for privacy advocates, but it may be a short-lived one. The Senate was just one vote short of allowing the amendment to go forward, and the measure may well be approved soon. The vote yesterday was to end debate on the bill and move it forward, but the amendment probably will be brought to a vote again in the near future. The amendment was proposed by Sen. John McCain (R-Ari.) and it has drawn criticism from the privacy community for the increased power it would give the FBI.
NSLs are issued by the secretive Foreign Intelligence Surveillance Court and are almost always accompanied by a gag order that prevents recipients from even disclosing the fact that they received an order. The letters usually are employed in terrorism investigations and often are used to gain access to telephone metadata. The amendment voted down in the Senate on Wednesday wold allow the FBI to use an NSL to demand electronic communications transactional records, which would include email and Web browsing records.
“If this proposal passes, FBI agents will be able to demand the records of what websites you look at online, who you email and chat with, and your text message logs, with no judicial oversight whatsoever. The reality is the FBI already has the power to demand these electronic records with a court order under the Patriot Act. In emergencies the FBI can even obtain the records right away and go to a judge after the fact. This isn’t about giving law-enforcement new tools, it’s about the FBI not wanting to do paperwork,” Sen. Ron Wyden (D-Ore.) said in a statement.
Wyden has been a vocal opponent of the amendment, which is contained in the 2017 Intelligence Authorization Act, the bill that determines the budget for the various intelligence agencies. Even though the amendment was defeated Wednesday, it could be brought to a vote again at any time. The Senate majority leader, Sen. Mitch McConnell (R-Ky.) voted against the measure, a move that gives him the ability to bring it up for another vote in the future.
Civil liberties groups have expressed concerns about the expansion of the FBI’s powers if the amendment passes.
“In light of the FBI’s ability to use NSLs out of the public view and without a judge to evaluate its interpretation of the law, the information that the agency can obtain with an NSL must be very tightly controlled. Far from a simple ‘fix,’ the Senate proposals to include of a wide variety of electronic records under the NSLs represent a very worrying expansion of the FBI’s surveillance authority.” Andrew Crocker, a staff attorney at the EFF, said.