Senate Fails to Expand FBI Warrantless Access — Yet

An amendment to the Commerce, Justice, and Science Appropriations Act for FY 2017 that would have expanded the FBI’s ability to obtain private electronic information without a warrant narrowly met defeat in the US Senate on Wednesday, June 22, 2016.

The amendment, co-sponsored by Sen. John McCain (R – Arizona) and Sen. Richard Burr (R – North Carolina), was defeated when it failed to garner the required 60 votes required for passage, with the final vote being 58 for and 38 against. Senate Majority Leader Mitch McConnell (R – Kentucky) has already said he intends to bring the measure to a full vote again, likely before the July 11, 2016 recess.

The measure seeks to expand the FBI’s reach into electronic records through National Security Letters, a tool the agency can use without first obtaining court approval or a warrant. In addition, the amendment seeks to make permanent a provision in the Patriot Act known as the “lone wolf” provision. This would allow the FBI to monitor terrorism suspects who are “homegrown” or not connected to overseas terror organizations.

The Daily Voice News reported on June 4, 2016 about a nearly identical provision in the yet unapproved 2017 Intelligence Authorization Act that has passed in its Senate committee and awaits a vote by the full Senate. Senate Majority Whip Sen. John Cornyn (R – Texas) has also tried to put such a provision in an email privacy bill that is yet in committee.

In an effort to get the measure passed, McCain referred to the mass shooting in Orlando nightclub, Pulse, saying, “I don’t know if this attack could have been prevented or not, but I know attacks can be prevented.”

Burr told the full Senate, “We’re either gonna fight terrorism and prosecute criminals or we’re not going to do it.”

A former FBI counter-terrorism special agent Michael German explained that the legislative push to increase law enforcement’s surveillance has been occurring in the aftermath of tragedies such as the ones in Orlando since the 9/11 terrorist attacks on the World Trade Center:

“This is unfortunately a typical pattern that we’ve seen: rather than waiting for an opportunity to review the FBI’s counter-terrorism methodology, policymakers, members of Congress and the administration leap to do something without regard to whether that something will be helpful or harmful to future efforts. Over and over again, when someone acts out, the FBI has already investigated them, so clearly the FBI has all the authority they need. In all these cases, they tend to be powers the FBI has already been seeking, [and] exploit a tragedy to obtain.”

Those who support the measure to extend nonjudicial subpoena authority in the form of National Security Letters are hoping that another vote will give their side the necessary 60 votes for passage. The June 22, 2016 vote of 58 for passage of the measure represented McConnell changing his “yes” vote to a “no” at the last minute for procedural reasons and Sen. Dianne Feinstein (D – California) missed the vote due to family obligations. In the past, Feinstein has supported the provision, giving hope that her vote in the future could result in its passage.

Civil rights groups and others who oppose passage of the measure say it would further strip the privacy provisions of the Fourth Amendment, which prohibits unreasonable search and seizure.

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