Congress has failed to pass an expansion of online surveillance powers for monitoring suspected terrorists — at least for now. In a vote today, the Senate fell just short of the 60 votes needed to adopt an amendment brought by Senator John McCain (R-AZ), mustering only 58 supporters. But the proposal could be up for reconsideration soon: as Reuters notes, Senate Majority Leader Mitch McConnell (R-KY) switched his vote to "No" in order to bring it up again, as soon as later this week.
The measure, introduced as an amendment to a spending bill, would allow the FBI to collect targets’ browsing history, email records, and other electronic metadata through a national security letter — a method of surveillance that carries relatively little oversight and can bar internet service providers and other recipients from revealing its existence. It would also permanently extend the Patriot Act’s "lone wolf" provision, which allows surveillance of suspects who aren’t tied to a larger terrorist organization. Previously, a 2008 memo limited national security letters to demanding information equivalent to telephone subscriber data and billing records.
The amendment could be back by later this week
The amendment has been presented as a response to last week’s mass shooting at a nightclub in Orlando, Florida, although an earlier version of the proposal was introduced before the attack. But it seems unlikely that the powers would have made a difference in the shooting, in part because the FBI had already reviewed many of the affected materials on Mateen before the shooting took place. According to a statement by FBI Director Comey in the wake of the shooting, the FBI reviewed "transactional records from [Mateen’s] communications" when Mateen was first placed on the terrorism watch list in 2013. Those searches were based on existing legal powers, presumably triggered by reports from Mateen’s friends and coworkers. It’s unclear how the investigation would have differed under the powers proposed in today’s bill.
Still, senators and congressmen supporting the move have described it as a crucial response to the brutal attacks. "In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations," McCain said in an earlier statement on the bill. Comey has previously claimed that existing limits on national security letters and electronic communications are "essentially a typo in the law," calling for broader authority. But even as they stand, national security letters have come under consistent scrutiny, and the Electronic Frontier Foundation has called this amendment a "dangerous" measure that would further undermine judicial oversight.