Senate Falls Short on Expansion of FBI Surveillance Authority

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The United States Senate last week rejected a Republican-backed amendment that would have given the FBI expanded authority to access the browser histories and other electronic records of targets of terrorism and other national security investigations without first obtaining a warrant.

The Senate voted 58-38 for the amendment, cosponsored by Sen. Richard Burr, R-NC, chairman of the Senate Intelligence Committee, and Sen. John McCain, R-Ariz., chairman of the Senate Armed Services Committee. The amendment would have granted the FBI the power to obtain suspected terrorists' electronic records, including browser histories and email information, without a court order. The amendment fell short of the 60 votes required for passage.

"It is disappointing that my colleagues in the Senate voted down our amendment to give law enforcement a counterterrorism authority that the FBI considers its No. 1 priority," McCain said.

The amendment to the Commerce, Justice, Science Appropriations Act would not have allowed the FBI to gain access to the private content of messages, he pointed out. It applied only to non-content transactional records.

The FBI is allowed under existing law to obtain phone and financial records of suspected terrorists without a warrant, but not electronic records. The proposed amendment also would have made permanent under the Foreign Intelligence Surveillance Act the authority to monitor suspected non-U.S. citizen "lone wolf" terrorists, including ISIS-inspired who might have no direction from overseas terrorist organizations.

The Department of Justice declined to comment on the legislation, as the bill is expected to be reintroduced and thus is regarded as pending.

Opponents of the amendment praised the vote, as they considered the bill an attempt to take advantage of the Orlando terror attack to push forward legislative overreach.

"Good news," tweeted Sen. Ron Wyden, D-Ore., a long-time critic of increased government surveillance authority, after the failed vote. "Proponents of this fake, knee jerk solution failed to get support. That means we gained crucial ground."

The measure threatened the privacy of millions of Americans, open technology and privacy advocates argued, pointing out that any legitimate investigation can be accomplished by obtaining a court-ordered search warrant to get permission to search the browser history of a terrorism suspect.

"The Senate should not respond to the massacre in Orlando by voting to gut American's privacy protections and expand provisions of the Patriot Act that have been consistently abused by the government," said Karin Johanson, national political director of the American Civil Liberties Union. "The McCain amendment would allow the FBI to collect American's most sensitive information -- including the websites they visit and addresses they email -- without a court order. We urge the Senate to abandon this misguided effort."

The ACLU led a number of privacy and open technology advocates in rallying opposition to the amendment.

"I think you saw a strong showing from grassroots advocates about the vote and its privacy implications, but it was an incredibly close vote and some members were missing," said Mark Jaycox, the civil liberties legislative lead at the Electronic Frontier Foundation.

"The biggest question will be if Sen. [Mitch] McConnell (R-Ky.) brings this up for another vote," Jaycox told the E-Commerce Times. "It's a key vote for privacy and technology advocates."

In fact, McConnell, the Senate majority leader, switched his yes vote to no in a procedural move that allows him to bring back the bill for a second vote.

Following the terrorist attack in San Bernardino, California, she joined Burr in cosponsoring a bill that would have required technology companies to cooperate with federal law enforcement on terrorism-related cases.

David Jones is a freelance writer based in Essex County, New Jersey. He has written for Reuters, Bloomberg, Crain's New York Business and The New York Times.

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