The Senate was seeking unanimous consent to quickly move forward with a vote on a bill that would expand FBI surveillance power. Senator Ron Wyden has voted against the proposal, which has halted the bill’s progress for now. The bill can still move forward if it has sufficient support, but it will be a longer process than if unanimous consent was obtained.
The bill in question is the Intelligence Authorization bill for Fiscal Year 2017, which contains some provisions that would expand the FBI’s use of national security letters(NSL). Wyden draws a comparison between this bill and one that was narrowly rejected by the Senate last week. The rejected bill contains very similar language to that found in the Intelligence Authorization bill.
NSLs are an administrative tool that allows the FBI to obtain phone records and billing records without the oversight of a judge. The FBI has demanded an expansion of NSLs so they can request records relating to email, text messages and browsing history without having to obtain a warrant. The Intelligence Authorization bill would give the FBI everything it wants, if it is passed into law. However, Wyden argues that there is no need to expand the use of NSLs, and courts should be issuing warrants if the FBI wants access to those records. He states:
I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities.
The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.
Wyden also draws attention to the fact that the bill would limit the jurisdiction of the Privacy and Civil Liberties Oversight Board, an agency tasked with reviewing the actions of the executive branch in order to protect civil liberties. Specifically, the bill would limit the board’s jurisdiction to programs which impact US citizens and legal residents. Wyden does admit that it makes sense for the board to focus on the rights of Americans, but in some cases it’s not easy to tell what a person’s status is. He believes that narrowing the board’s jurisdiction will prevent it from dealing with programs where the effect on Americans is not readily apparent.
He also believes there are diplomatic benefits of having the board look out for the rights of non-americans. He mentions that foreign countries concerned about American surveillance are reluctant to enter into deals that benefit American tech companies. He concludes, “I am therefore concerned that narrowing the Board’s jurisdiction and signaling that the U.S. has no regard for the privacy of other countries’ citizens would play into the hands of foreign protectionists.”
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