Senate Fails To Approve Bill Allowing FBI Searches Of Web, Phone Records Without Court Order

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Earlier this week, in response to the recent massacre of 49 people at Pulse nightclub in Orlando, Senators John McCain of Arizona and Richard Burr of North Carolina introduced a controversial piece of legislation that, if approved, would allow federal law enforcement to perform searches of suspects’ electronic and online records without a traditional court order. However, this morning the Senate narrowly failed to approve the bill.

The legislation itself was introduced as one of hundreds of amendments to the Commerce, Justice, Science and Related Agencies Appropriations bill.

After brief debate this morning, the Senate moved to close debate and vote on the amendment. A total of 60 votes were needed to reach cloture so that the legislation could move forward, however, supporters of the legislation could only find 58 votes, with 38 senators voting against.

The text of the amendment sought to revise existing law regarding counterintelligence access to telecommunications by clarifying that the FBI can use National Security Letters — administrative subpoenas that come not from a court, but from high-ranking government officials — to demand that telecom and electronic communications providers turn over certain info to the FBI.

This information could include the name, physical address, e-mail address, phone number, account number and other info about the account-holder, like their login history, length of service, types of service, and how they paid for service. The letters could also be used to obtain records about local and long-distance phone calls, and the person’s IP address for their broadband service.

The amendment also aimed to grant a permanent extension to the government’s authority to treat so-called “lone wolf” terrorists — those working without any direction from an existing terrorist body — as foreign agents subject to surveillance. Under the USA FREEDOM Act of 2015, that specific authority was supposed to expire in 2019.

Speaking this morning on the Senate floor, McCain called the changes he sought to existing laws a “no-brainer,” claiming they was necessary to prevent terrorists from “sneaking into this country” in order to commit further acts of terror.

“Shouldn’t we give this rudimentary tool” to the FBI, asked the senator. “They need this authority in order to carry out their responsibilities.”

Critics of the legislation had pointed out that, aside from the potentially chilling effect of granting the FBI warrant-less access to telephone and web records, the attack in Orlando was from a home-grown killer, and that almost all of the mass shootings in the last decades have involved killers who were American citizens and not affiliated with any foreign terror organization.

Senator Ron Wyden of Oregon, an outspoken advocate for privacy issues, has called the amendment a “lose-lose” proposition.

“It won’t make our country safer, but it will take away crucial checks and balances that protect our freedom,” Wyden said in a statement before the vote. “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.”

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