The measure’s advocates, including Republican John McCain of Arizona, won over a majority of their colleagues during a vote on Wednesday. Photograph: Alex Brandon/AP
The Senate has rejected loosening restrictions on the FBI’s ability to collect Americans’ digital data, defeating for the time being a legislative move privacy advocates denounced as a cynical exploitation of the Orlando mass shooting.
The Obama administration-supported measure, a priority for the bureau before the 12 June massacre at an LGBT nightclub, would have allowed the FBI vast access to internet metadata, including messaging logs, account logins, browser histories and email records, all without a warrant, by using a kind of nonjudicial subpoena known as a national security letter.
The FBI already has the authority to collect that data, under the 2001 Patriot Act, but only with a judge’s approval, prompting Senator Ron Wyden, a Democrat from Oregon, to blast the measure for helping the FBI avoid “paperwork”. Tech firms and civil libertarians said in a letter to senators opposing the proposal that the data “would paint an incredibly intimate picture of an individual’s life”.
The measure’s advocates, Republicans John McCain of Arizona and Richard Burr of North Carolina, won over a majority of their colleagues during a Wednesday vote. But they failed, 58 to 38, to add it to a Senate bill, thanks to parliamentary rules which require 60 votes to advance it, and vowed to pass it on a repeat attempt.
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Once defeat loomed, the Senate majority leader, Mitch McConnell, filed a legislative maneuver to bring the measure back, probably before the 11 July recess.
Burr and McCain argued that the weakened restrictions are necessary to catch the next Omar Mateen, the Orlando nightclub shooter who exhibited few signs of radicalization before the attack, even though they acknowledged the powers the measure sought might not have stopped last week’s mass killing in Florida.
“Right now, there are unfortunately young people in this country that are self-radicalized, and what vehicle is doing the self-radicalization? It’s the internet. We’re not asking for content here, we’re asking for usage,” McCain said on the Senate floor.
“I don’t know if this attack could have been prevented or not, but I know attacks can be prevented,” McCain added.
“We’re either gonna fight terrorism and prosecute criminals or we’re not going to do it,” Burr said on the Senate floor.
But Burr said Wyden was “100% correct” that expanded warrantless access to online records would have stopped neither the Orlando nor last December’s San Bernardino attacks: “I hope there’s no legislation that’s about a single incident. It’s about a framework of tools for law enforcement.”
Wyden responded: “What we’re talking about today is not making the country safer but threatening our liberty.” He added that the 2015 USA Freedom Act, which modified the Patriot Act, provided the FBI with emergency powers to briefly collect online metadata before receiving a judge’s approval.
Tech companies, privacy campaigners and FBI veterans considered the measure both dubiously connected to the circumstances of Orlando and a questionable model for finding the next Mateen.
Mateen’s behavior, online as well as physical, does not seem to have changed markedly in advance of the slaughter of 49 people in Orlando earlier this month. Relatives and friends have described him as consistently bellicose, and investigators are examining whether his allegedly repressed homosexuality spurred a crisis that drove him to both claim fealty to the Islamic State militant group and commit the nightclub assault.
The FBI had interviewed Mateen on three prior occasions in 2013 and 2014 regarding terrorism suspicions and ultimately found no basis for considering him a threat or pursuing an investigation.
The legislative push reflects a post-9/11 pattern to “exploit a tragedy” for expanded investigative powers, said Michael German, a former FBI counter-terrorism special agent.
“This is unfortunately a typical pattern that we’ve seen: rather than waiting for an opportunity to review the FBI’s counter-terrorism methodology, policymakers, members of Congress and the administration leap to do something without regard to whether that something will be helpful or harmful to future efforts. Over and over again, when someone acts out, the FBI has already investigated them, so clearly the FBI has all the authority they need,” German said.
“In all these cases, they tend to be powers the FBI has already been seeking, [and] exploit a tragedy to obtain.”
The FBI director, James Comey, testified in February to the Senate intelligence committee Burr chairs that expanded warrantless access to so-called electronic communication transaction records were a legislative priority for the bureau. A similar authority is contained within the annual intelligence authorization bill that Burr co-authored, another indication that the argument over the loosened restrictions has not ended.
Still, the parliamentary loss in the Senate is rare for the bureau. It comes amid a high-profile failure related to the San Bernardino attacks, where the FBI lost a battle to compel Apple to write a version of its mobile operating system with weaker security protections.
The tech giant Yahoo recently revealed that when the FBI sought warrantless access to much of data the amendment permits, the justice department in 2008 found that judicial authorization was required.
A coalition of civil-liberties groups and tech firms, including Facebook, Google and Foursquare, urged defeat of the amendment in a 16 June letter, warning that data collected by national security letters is stored “indefinitely, [and] used to gain access to private information in cases that were not relevant to an FBI investigation”.