In a narrow vote on Wednesday, the upper chamber rejected a measure that would have allowed federal authorities to obtain online metadata using specialized national security state subpoenas.
The amendment was introduced by Sen. John McCain (R-Ariz.) to a Justice Department appropriations bill. Though it was supported by a bipartisan group of 58 senators, it failed to attain the sixty votes it needed to advance.
Heavily lobbied for by the FBI, the measure would have allowed the bureau to use National Security Letters (NSL) to obtain a wide swath of revealing internet metadata–described as electronic communication transactional records (ECTR).
Unlike traditional warrants, NSLs can be obtained without judicial approval nor probable cause of a crime. They often gag third party recipients from disclosing the mere existence of the order.
McCain’s amendment would have stipulated NSLs to cover an online user’s “name, physical address, email address, telephone number, instrument number, and other similar account identifying information.” Login histories, service arrangements, payment information, local and long distance phone call billing records, and IP addresses could also have been swept up via NSL authority under the measure.
Although surveillance hawks in Congress have long tried to advance this particular FBI initiative, McCain and supporters seized on the Orlando massacre in a bid to jam it this week through the Senate. Fifty people, including gunman Omar Mateen, were killed on June 12, at a gay night club in Orlando. It was the worst mass shooting in US history.
Ahead of the vote, McCain called the amendment a “no-brainer,” noting that the threat of online radicalization demands granting law enforcement greater access to ECTRs.
It’s unlikely, however, that access to Mateen’s internet records would have prevented the rampage. His online interactions were likely already reviewed by federal authorities, who investigated him twice over the last three years.
The FBI can already obtain certain internet metadata through a host of other authorities including the recently-reformed Section 215 of the USA Patriot. In those cases, agents are required to follow rules and minimization procedures outlined by the secret Foreign Intelligence Surveillance Court.
Sen. Ron Wyden (D-Ore.) spoke out against the amendment prior to the vote on Wednesday.
“The amendment gives the FBI field offices authority to scoop up all of this digital material without judicial oversight,” he said. “That’s a mistake.”
Throughout the hour-long vote, Wyden could be seen pacing back and forth in the Senate well and having animated conversations with colleagues as they approached to register support or opposition to the measure.
Although it was defeated, the measure is far from dead. Senate Majority Leader Mitch McConnell (R-Ky.) switched his vote from yea to nay to use parliamentary rules to bring the measure back to the floor for reconsideration within a few days.
A similar version of the amendment was also included in a Senate intelligence authorization bill that passed out of committee earlier this month. It has yet to be considered before the full chamber.
Additionally, there is a parallel effort to pass the NSL measure in the Senate Judiciary Committee. It is being led by Sen. John Cornyn (R-Texas), who sought to attach the legislation to an email privacy bill that had passed the House 419-0. He initially made the effort three weeks before the Orlando shooting.
