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Written by: Mike Yang

The Senate last week voted against an expansion of FBI surveillance powers, a vote that was seen as a temporary barrier at best. Now, a key member of the Senate intelligence committee has placed a hold on the bill that includes that provision, saying the measure “would dramatically and unnecessarily expand government surveillance authorities”.
Sen. Ron Wyden (D-Ore.) said on Monday on the Senate floor that he objects to the portion of the Intelligence Authorization Bill that would allow the FBI to use National Security Letters to obtain electronic communications transactional records, a broad term that can include email and Web browsing records. Right now, NSLs are used to gain access to phone and financial records, including phone metadata information. The language that’s in the intelligence budget bill would give the FBI the authority to use NSLs for a much broader group of records.
NSLs are issued by the Foreign Intelligence Surveillance Court in secret and virtually all of them are accompanied by a gag order that prohibits the recipient from disclosing that he has received the letter. Wyden said in his remarks Monday that expanding the FBI’s power to use NSLs is unnecessary, as the bureau already has the authority to get such records in emergency situations.
“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,” Wyden said.
“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’s challenge to the bill came as the Senate was asked to give unanimous consent to it. The expansion of the authority to use NSLs has become a sensitive issue, especially as the letters themselves are seen as highly controversial instruments. The FISA court issues NSLs without any public oversight, and Wyden said the Office of the Inspector General has found that the FBI has repeatedly abused the process to use the letters for purposes outside of those for which they’re intended.
“No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight.  In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly,” Wyden said.
Despite Wyden’s move to put a hold on the Intelligence Authorization bill, the law likely will pass the next time it comes up for a vote. When it didn’t pass last week, it was more of a procedural defeat than anything else. Support for the bill is strong enough in the Senate to move it forward.