On Wednesday, the Senate rejected an effort proposed by Armed Services Committee Chairman John McCain (R-Ariz.) and Senate Intelligence Committee Chairman Richard Burr (R-N.C.) to allow the FBI to search web browsing history, email account data and other electronic communications without a court order.
McCain and Burr argued circumventing the Fourth Amendment is required in “lone wolf” terror cases conducted by the FBI. The proposal was introduced after the attack in Orlando.
The measure, presented as an amendment to a spending bill to fund government agencies including the Justice Department, failed to receive the 60 votes required, although the vote was close. Earlier this year, the House passed a bill to limit the government’s ability to access email.
The FBI claims it is a top priority for the agency to collect information on email accounts, how much time a person spends on websites, and their IP address without obtaining a court order.
Earlier this year FBI director James Comey said the Fourth Amendment “affects our work in a very, very big and practical way.”
On Tuesday McCain said he has “great sympathy for [privacy advocates], but I respect more the view of Director Comey, who has said it’s his number one priority. It’s his job to protect the country.”
Senate Majority Whip John Cornyn (R-Tex.) agreed. “Our failure to act to grant this authority, particularly in the wake of this terrible tragedy in Orlando, would be inexcusable. This is something the FBI director appointed by President Obama had said he needs. He said this is their number one legislative priority… We owe it to those on the front lines of our counterterrorism efforts to get them what they need,” he said from the Senate floor on Tuesday.
Last month the committee passed the Senate Intelligence Committee’s authorization bill. It contains similar language to the McCain-Burr measure. Cornyn also offered a measure making changes to the Electronic Communications Privacy Act (ECPA) that stalled in the Senate Judiciary Committee. The House countered Cornyn’s proposal by passing its own version of the ECPA that prevents the government from reading email without a court issued warrant.
On June 6, a number of civil liberties and tech groups, including the ACLU, Facebook, Google, the Constitution Project, and others sent a letter to the Senate opposing the expansion of the National Security Letter (NSL) statute included in the Senate’s Intelligence Authorization Act for Fiscal Year 2017 and Cornyn’s amendment to the ECPA reform bill.
“Given the sensitive nature of the information that could be swept up under the proposed expansion, and the documented past abuses of the underlying NSL statute, we urge the Senate to remove this provision from the Intelligence Authorization bill and oppose efforts to include such language in the ECPA reform bill, which has never included the proposed NSL expansion,” the letter states.
National Security Letters are administrative subpoenas issued by the government in national security investigations. Because the subpoenas include a nondisclosure order and lack judicial oversight, they are considered a violation of the Fourth Amendment. NSLs were codified under Section 505 of the Patriot Act in 2001.