On Wednesday, June 22, the U.S. Senate voted down a proposal that would have expanded the Federal Bureau of Investigation’s (“FBI”) ability to obtain internet records from technology companies. The measure, a proposed amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act, received a vote of 58-38, falling two votes short of the 60-vote threshold needed to move forward.

The amendment, sponsored by Senators John McCain (R-AR) and Richard Burr (R-NC), would have allowed the FBI to use National Security Letters (“NSLs”) to force companies to turn over a broader category of non-content electronic communications transactional records (“ECTR”) – such as email addresses, internet protocol addresses, browsing history and account information – when the FBI claimed that such records were relevant to an investigation into terrorism or espionage. 

NSLs are administrative subpoenas that do not require court approval and often come with a non-disclosure order. Under current law, passed as part of the 2001 Patriot Act, the FBI can only use NSLs to get information pertaining to a customer’s “name, address, length of service, and local and long distance toll billing records of a person or entity.” If the FBI wants to compel a company to hand more information, it has to get a court order. According Senator Burr, granting the FBI this authority would shorten to a “one-day process” using an NSL what currently can be a month-long process of the FBI requesting permission from the Foreign Intelligence Surveillance Court.

Senator Ron Wyden (D-OR), who voted against the measure, argued that the amendment violates the Fourth Amendment and that it is unnecessary because the surveillance-reforming USA Freedom Act enacted last year “allows the FBI to demand all of these records in an emergency and then go get court approval after the fact. So unless you’re opposed to court oversight, even after the fact, there’s no need to support this amendment.”

According to the American Civil Liberties Union (“ACLU”), the measure would “erode many of the reforms” to the Patriot Act that Congress enacted last year, ending bulk collection of telephone records and Internet metadata. The ACLU noted that companies including Google, Yahoo and Microsoft also opposed the amendment. 

Reporter, Drew Crawford, Washington, DC, +1 202 626 5512, dcrawford@kslaw.com.