Senator Holds Up Intelligence Authorization Bill Over FBI Digital Surveillance Provisions

Image courtesy of Brad Clinesmith

Two kinds of bills run the world, or at least the American slice of it: appropriations acts, which give agencies their budgets, and authorization acts, which tell them how to use them and what they are allowed to do. The bill that authorizes all of the United States’ intelligence activities has been making its way through Congress all year, but now has hit a major roadblock in the Senate, as one Senator has taken a stand against some of its surveillance provisions.

The Intelligence Authorization Act (HR 5077 / S 3017) is one of those big-deal, must-pass bills that Congress still sometimes actually moves on. It’s the law that authorizes all of the United States’ intelligence-gathering agencies and entities to do their thing, and says what activities their budget should be spent on. The bill affects everything from the CIA, NSA, and FBI to the Departments of Treasury, State, Energy, and Justice. 16 different agencies and directorships fall under its umbrella.

In short, it’s kind of a big deal… and so is holding it up.

Senatorial procedural rules are a little arcane. To bring a bill to the floor for a full vote theoretically takes unanimous consent — everyone has to agree to vote on the thing before they can vote yes or no on the thing. That means when someone or a group of someones wants to block the thing, they can place a hold on it, refusing to make that consent unanimous. And that, in turn, means the bill does not go to the floor for a vote.

That’s what Sen. Ron Wyden of Oregon has done here, and he gave a substantial speech on the Senate floor explaining his reasoning.

“While I respect the effort” that everyone on the Intelligence Committee took to draft and amend the bill, Wyden began, “it would dramatically and unnecessarily expand government surveillance authorities, and it would undermine independent oversight of Americans’ intelligence agencies.” And so, no unanimous consent.

The surveillance expansion authority to which Wyden was referring is very specifically a provision relating to the FBI. Section 803 of the bill, Wyden explained, would allow the FBI to demand access to anyone’s e-mail and internet records by issuing a National Security Letter, rather than requiring a proper search warrant.

Here’s the text of section 803:

The Director of the Federal Bureau of Investigation, or the designee of the Director in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request, request the name, address, length of service, local and long distance toll billing records, and electronic communication transactional records of a person or entity, but not the contents of an electronic communication, if the Director (or the designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, toll billing records, and electronic communication transactional records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States.

In English, that says that the FBI can ask your telecom company to turn over your phone records, your browsing history, your text messaging history, and the records of who you e-mailed or chatted with and when — but not the contents of the e-mail or chat — if they say it’s relevant to a national security investigation. (The first part means that they have to ask specifically for a person’s records and can’t just do a fishing expedition by asking for all records starting with the letter Q, or whatnot.)

This, Wyden said, is no good.

“I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly,” said Wyden. “But [FISC] judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact.”

“I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork,” Wyden continued.

“The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans,” Wyden said. “And unfortunately, the FBI’s track record with its existing NAtional Security Letter authorities includes a substantial amount of abuse and misuse.”

Wyden had praise for most of the bill, but concluded that he would not approve it to move forward to the floor for a vote until the troublesome provisions were removed.

This position is consistent for Wyden, who has repeatedly taken a stand, in this election year, for personal encryption and against increased government access to digital property.

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