A controversial amendment that would expand the FBI’s surveillance power was narrowly defeated in the Senate Wednesday.
The final tally was 58 to 38, two votes shy of the 60 needed for the amendment to move forward. The issue will likely surface again soon, however, as Majority Leader Senator Mitch McConnell, R-Ky., immediately filed for a motion to reconsider the amendment.
The amendment — lumped on last-minute to a criminal justice funding bill — would have expanded the scope of information the FBI can collect by sending technology and Internet companies what’s known as a national security letter—without getting any kind of court approval first.
The FBI would be able to access information about suspects’ online behavior including what websites someone visits and for how long, IP address, social media activity, email headers, and more.
Companies can’t talk about the requests because they come with a gag order. Only a handful of national security letters have been made public in the decades since the FBI started issuing them.
Privacy advocates and technology companies have protested the amendment as an intrusion on Fourth Amendment protections on sensitive personal information.
“The country wants policies that promote safety and liberty,” said Sen. Ron Wyden, D-Ore., on Wednesday. “Increasingly we’re getting policies that don’t do much of either.”
He pointed out that the USA Freedom Act, in a section he authored, would allow the FBI to get the records it seeks in an emergency immediately and seek judicial approval afterwards.
Advocates like Sen. John McCain, R-Ariz., the amendment’s sponsor, insist the FBI needs more power to combat “radicalization” on the Internet. “Every law enforcement agency in American supports this,” he insisted.
The vote comes shortly after Republican senators rallied around the recent tragedy at a night club in Orlando to push for expanded surveillance powers. Though the Chairman of the Intelligence Committee, Sen. Richard Burr, R-N.C., admitted on the floor before the vote that the amendment would not have prevented the mass shooting in Orlando, or the attacks in San Bernardino in December of last year.
Burr repeated FBI Director James Comey’s assertion that the expansion being discussed is really just fixing a “typo” in the law—because the FBI used to regularly seek those records before one company, whose identify remains unknown, “bucked the system” as Burr put it, and refused to hand them over because the language of the law was confusing.
In fact, the FBI has been trying to expand the power of its national security letters since 2008, when the George W. Bush Department of Justice interpreted those powers more narrowly than the FBI liked.
The FBI has also continued to ask for additional records until at least 2013 despite the DOJ’s advice, exceeding its authorities, as The Intercept reported.