Where some see tragedy, government sees opportunity. Surveillance hawks attempted to use the fear surrounding the Orlando shooting to ram through an unconstitutional expansion of the government’s surveillance powers. They rushed a vote in the Senate yesterday and were very narrowly thwarted. For now.
Senators John McCain, R-A.Z. (F, 35%) and Richard Burr, R-N.C. (F, 43%) hastily brought up an amendment to the Department of Justice funding bill that would have vastly expanded the FBI’s authority to seize detailed records of your internet usage by means of a National Security Letter (NSL). NSLs are used without any judicial approval (no warrant required), and come with a gag order that prevents companies from reporting if their NSL makes demands that are outside of legal bounds.
Dubbed the “ECTR Fix” by its supporters, this supposedly minor tweak to NSL authority would actually allow agencies to force internet and phone providers to turn over basically everything about your online activity except for the actual text of your communications. This includes, according to the Center for Democracy and Technology, “your email history (e.g., who emailed whom, and when), your web browsing history (e.g., what blogs you read), logs of all your text messages, detailed location information, and other sensitive data that paints an intimate picture of everything you do online.”
I wrote about this subject in detail only two weeks ago, when Senator John Cornyn, R-T.X. (F, 46%) brought up a very similar proposal as an amendment to a bill on (ironically) 4th Amendment protections for email. The constitutionally savvy Senator Mike Lee, R-U.T. (A, 100%) was forced to pull that excellent bill for fear that Cornyn’s amendment would pass. Lee said at the time that “the national security letter amendment is something I cannot in good conscience have attached to this bill.”
But two days later Orlando happened, and surveillance hawks McCain and Burr wasted little time in bringing the NSL expansion back, in order to “to enhance law enforcement’s abilities to catch terrorists.”
Now, no sane person is arguing that the FBI shouldn’t be able to wiretap terrorist suspects or monitor their internet activities – if there is probable cause to suspect that the individuals being investigated are engaged in criminal activity. But there is a due process for handling such activities that is specifically enshrined in the Fourth Amendment of our Constitution in order to protect against unjust search and seizure of our private property and communications.
In other words, absolutely please do spy on suspected terrorists. But get a warrant.
There ought to be a warrant requirement for National Security Letters in general, but in the meantime NSLs should certainly not be expanded, especially since the FBI has already been caught using them to illegally request the very internet data they are attempting to make legal now.
Tuesday’s vote very narrowly failed, 58-38, thanks in part to quick and decisive action to spread the alarm by a number of major national groups such as FreedomWorks and the ACLU. But Senate Majority Leader Mitch McConnell, R-K.Y. (F, 44%),who favors the NSL amendment, switched his vote from Yea to Nay, a technique which allows him to bring up another vote at any time.
Meanwhile, the Senate leadership of both parties are doubtless arm-twisting, pleading, arguing, and cajoling a number of their colleagues to try to wrangle the few necessary votes to pass their unconstitutional bill of the day.
This article originally appeared on Conservative Review.
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