Senate fails to pass amendment expanding FBI's NSL authority, codifying lone wolf provision

The amendment might resurface for another vote, the EFF said.
The amendment might resurface for another vote, the EFF said.

The Senate is not yet ready to grant the FBI expanded National Security Letter (NSL) powers after it failed Wednesday to pass an amendment to that affect and which would make permanent the "lone wolf" provision of the Patriot Act permanent set to expire in 2019.

But digital rights groups cautioned those opposed to the changes not to celebrate too soon.

“The amendment will probably be voted on again later today,” the Electronic Frontier Foundation (EFF) said in an update to a Wednesday blog post penned by Staff Attorney Andrew Crocker. “Senate Majority Leader Mitch McConnell switched his vote to "No" at the last minute so that he may be able to bring up the amendment during future debate.” 

The Senate was to confirm or reject the two-pronged amendment proposed by Sen. John McCain (R-Ariz.) to attach to the Commerce, Justice, Science and Related Agencies Appropriations Act, which will come up for a final vote by the legislators later in the week. 

The EFF had urged senators to vote no on the amendment, claiming that the FBI had previously abused its NSL authority and had never used the lone wolf provision.

“Because nearly all NSLs are accompanied by self-certified gag orders signed by the FBI, it's supremely hard for the public to get clear information about them," Crocker wrote. "The ECTR question is no different. Despite the hundreds of thousands of NSLs issued since 2001, the public has seen only a handful.”

The exception was the 2004 NSL issued to Calyx Founder Nicholas Merrill, which requested more than basic information about one of the ISP's subscribers.

“Merrill fought this NSL for over a decade, before it was finally unsealed in full last year,” Crocker wrote. “The judge in that case noted that one key piece of evidence in this unsealing was a Justice Department manual claiming that the FBI could get even more information, including URL browsing history, email headers and even cell phone location data.

Marrero's court in September had ordered the FBI to lift its gag order on Merrill, a computer programmer and executive director of the Calyx Institute, a nonprofit privacy advocacy group, who received the NSL in 2004 and was fobidden via a gag order from disclosing the that the FBI had demanded information from his company. 

In December, Merrill released the contents of that letter.

President Obama has sought to curb the secrecy surrounding NSLs. In January 2014 asking the Office of the Director on National Intelligence (DNI) how "to amend how we use National Security Letters so that [their] secrecy will not be indefinite, and will terminate within a fixed time unless the government demonstrates a real need for further secrecy.” 

And the DNI responded that the gag orders would be capped at three years, noting that "continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate." 

While FreedomWorks CEO Adam Brandon said the group agrees “that federal law enforcement should have the tools it needs to protect Americans," he noted in a release sent to SCMagazine.com, that the "tools must respect the Fourth Amendment's safeguards against unreasonable searches and seizures."

Law enforcement, he noted, "must be required to respect these protections and get a warrant before obtaining information about any American."

Brandon urged Senate Majority Leader McConnell and McCain "to abandon this effort to grow the surveillance state and undermine Americans' constitutionally protected freedoms.”

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