The Cable

Republicans Try and Fail to Invoke Terror to Pass Surveillance Measure

The Orlando terror attack wasn't enough to hand the FBI broader power.

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If there’s a predictable cycle to U.S. national security politics, it’s that the pendulum between civil liberties and surveillance authorities tends to swing toward the latter in the aftermath of a terrorist attack. But on Wednesday, the Senate failed to advance to exactly such a measure — despite invocations of the attack on an Orlando nightclub that killed 49 people ten days ago.

That measure would hand the FBI additional powers to obtain internet data through so-called National Security Letters. Such missives allow the bureau to seek information in secret, and the proposed reform would allow the bureau to use the letters to obtain information about what websites a terrorism or espionage suspect visits, whom he emails, and when — all without a warrant.

“Our failure to act to grant this authority, particularly in the wake of this terrible tragedy in Orlando, would be inexcusable,” Senate Majority Whip John Cornyn (R-Tex.) said on the floor of the Senate Tuesday.

But Cornyn and his colleagues failed to push the measure through the Senate by a meagre two votes, and, according to Reuters, Senate Majority Leader Mitch McConnell (R-Ky.) switched his vote at the last minute in order to be able to bring the measure to a vote again some time in the future. Republicans needed 60 votes to clear a procedural hurdle.  

Privacy advocates have railed against the expansion to the FBI’s authority to use national security letters. The Center for Democracy and Technology, a progressive advocacy group, called it “a massive expansion of the government’s ability to spy on our electronic communications.”

The FBI has lobbied hard for the measure. Director Jim Comey has described it as an attempt to fix a “typo” in the law that puts certain information out of the reach of National Security Letters.  

But Sen. Ron Wyden, the Senate’s most outspoken civil libertarian on issues of government surveillance, has argued that the FBI can already obtain the type of internet and email records specified in the reform — by seeking a court order. “This isn’t about giving law enforcement new tools, it’s about the FBI not wanting to do paperwork,” the Oregon Democrat said.

The fate of the National Security Letter reform is uncertain. Several senators have brought up the measure in other forms, but such a bill would likely face opposition in the House, which has in recent months voted to expand protections for emails sought by the government.

Photo by Gerardo Mora/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace. @EliasGroll

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