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US Senate strikes down open-access FBI hacking warrant by just one honest vote

Fourth Amendment plays second fiddle to the Second

By Iain Thomson, 22 Jun 2016

The US Senate has struck down an amendment that would have allowed the FBI to track internet histories and communications without judicial oversight, but a re-vote could be called as soon as today due to Senate rules.

The amendment [PDF] to the Commerce, Justice, Science, and Related Agencies Appropriations Act would have given the FBI the right to use National Security Letters (NSLs), which compel communications companies to hand over a customer's "transactional records," including their browsing history, time spent online, and email metadata, but not the content of messages.

In addition, it would have made permanent a provision in the Patriot Act that would allow the same powers for those deemed to be "individual terrorists to be treated as agents of foreign powers," a measure aimed at tracking so-called lone wolf operators.

It was introduced on Monday by Senators John McCain (R-AZ) and Richard Burr (R-NC) in response to the shootings in Orlando, but is part of a wider push to allow the FBI to use NSL letters for legal surveillance. Senator John Cornyn (R-TX) has named the issue the FBI's top legislative priority and has tabled a further amendment to allow similar powers to law enforcement.

"It will allow the FBI to collect the dots so they can connect the dots, and that's been the biggest problem that they've had in identifying these homegrown, radicalized terrorists, like the shooter in Orlando," he said before the vote.

In the end it came down to a single vote. The hour-long Senate vote was settled at 58-38 (and 4 abstentions), with Senate Majority Leader Mitch McConnell (R-KY) voting against the amendment at the last minute.

This wasn't due to a Damascene conversion, but because it allows him to file a Motion to Reconsider at any time to bring another vote – possibly as soon as this afternoon but more likely before the July 15 recess.

If at first you don't succeed

If or when McConnell does exercise his right to a motion, the Senate may vote it down again, but there are other options on the table and the FBI and its supporters aren't giving up on the NSL amendment.

The FBI already has the ability to collect all this data under the Patriot Act, but it has to either go to a judge first or – in case of emergency – can collect it anyway and ask for retroactive permission, which is almost always granted. But NSLs are so much more convenient.

In the past, the FBI used to claim the right to this sort of data using NSLs. It sends out thousands of them every year to collect data without the companies involved being able to tell customers about it other than by use of so-called warrant canaries. But in 2008, the government ruled the FBI had to go to a judge first, and since then the agency has been pushing back.

In April, the US Supreme Court approved a change to Rule 41 of the Federal Rules of Civil Procedure, introduced by the Department of Justice, which would give the FBI the right to use NSL letters in this way. Unless Congress votes to change the rules by December 1 then the change will come into effect.

Senators Ron Wyden (D-OR) and Rand Paul (R-KY) introduced the Stopping Mass Hacking (SMH) Act to introduce a legislative change before the December 1 deadline, and tech firms like Google and PayPal as well as the Tor Project, the ACLU and EFF have sought to mobilize public support for the legislation.

But Senator Cornyn, who must be a favorite of the FBI, introduced a last-minute amendment to the Electronic Communications Privacy Act (ECPA) Amendments Act of 2015 that would give the same powers to the Feds.

The ECPA, which was passed unanimously by the House of Representatives, was designed to amend the earlier 1986 legislation, which allowed the warrantless searching of emails that had been read or that were more than 180 days old. But after Cornyn introduced his amendment, the bill's sponsors took it off the voting schedule rather than let the amendment stand, and its supporters were visibly annoyed at the Texan senator's tactics.

"The Cornyn National Security Letters amendment is something that I cannot in good conscience have attached to this bill," said ECPA co-sponsor Senator Mike Lee (R-UT). "We want to make sure that when we get this passed, it enhances rather than diminishes our interests protected by the Fourth Amendment."

A difference of priorities

Senator Cornyn's support for warrantless and secret wiretapping stands in curious contrast to his other positions that apparently protect the rights of US citizens.

Earlier this week the senator was one of many Republicans who struck down legal proposals – also introduced in the wake of the Orlando shootings – which would have barred those on a terrorism watch list from purchasing firearms legally.

"If there are those in this chamber who believed you can deny American citizens their constitutional rights without due process of law based on a secret list that the government maintains – I don't care who it is – I don't think any American should sacrifice their constitutional rights without forcing the government to go to an impartial magistrate or judge and be able to show sufficient evidence," Cornyn said on the Senate floor.

Two days later, however, and the senator supported the proposed amendment that would have allowed just that on privacy grounds. It seems the Fourth Amendment is less important than the Second to some.

On Wednesday's vote, Senator Wyden castigated his opposition parties for their contrary positions. Wyden said that there was no evidence that the FBI being able to use NSL searches would have stopped either the Orlando shooter or those in San Bernardino.

"The hypocrisy behind what has been going on the last few days; due process ought to apply as it relates to guns, but due process wouldn't apply as it relates to the internet activity of millions of Americans," he said.

"My view is that the country wants policies that promote safety and liberty, and increasingly we're getting policies that do not do much of either."

No news has been released as yet regarding a date for the Senate to reconsider the amendment. ®

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