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New Senate Intelligence Bill Expands FBI Surveillance Powers

Posted by Phoenix Harris | Jun 15, 2016 | 0 Comments

The latest Senate intelligence authorization bill has passed the Senate Select Committee on Intelligence by a vote of 14-to-1. The single “no” vote came from an Oregon Democrat who has warned that the bill would expand government surveillance, and undermine independent oversight.

The text of the 2017 Intelligence Authorization Act, which has just been published, includes a provision to give the FBI more power to make warrantless requests for information. According to Senator Ron Wyden, the bill would allow the FBI “to demand email records with no court oversight by simply sending a National Security Letter.” The bill would also narrow the scope of privacy and civil liberties oversight.

"This bill takes a hatchet to important protections for Americans' liberty,” Wyden said in a press release. “This bill would mean more government surveillance of Americans, less due process and less independent oversight of U.S. intelligence agencies. Worse, neither the intelligence agencies, nor the bill's sponsors have shown any evidence that these changes would do anything to make Americans more secure.”

Wyden specifically opposes provisions of the bill that expand the use of National Security Letters (NSLs), and limits the jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB). Under the current laws, the FBI can obtain email records through obtaining an order from the Foreign Intelligence Surveillance Act (FISA) court. However, under the proposed changes, the FBI would be able to obtain email records without a court order, by simply providing an NSL.

NSLs are currently used to obtain phone records without a warrant. They are often accompanied by a gag order, so that the phone company cannot tell the individual that their phone records have been given to the FBI. In 2000, the FBI issued approximately 8,500 NSLs. By 2014 that number grew to 21,900, averaging almost 60 NSLs per day. In 2015, the FBI issued almost 13,000 NSLs, which represents almost 50,000 information requests without a warrant.

The other major change would be limiting the PCLOB's jurisdiction to only review the impact of privacy rights of U.S. citizens. According to Wyden, it can be difficult to determine who is a U.S. citizen when dealing with global telecommunications networks. This could limit the PCLOB's oversight to potential American citizens who are not clearly identified as citizens.

The bill may also be changing the scope of the term, “electronic communications transaction record.” According to Wyden, “while this bill does not clearly define ‘electronic communication transaction records', this term could easily be read to encompass records of whom individuals exchange emails with and when, as well as their login history, IP addresses, and internet browsing history.”

Democratic Senator Martin Heinrich voted for the bill, but said he would try and remove the NSL expansion when the bill comes to a vote on the Senate floor. In a statement, Heinrich said the bill represents, “a massive expansion of government surveillance that lacks independent oversight and potentially gives the FBI access to Americans' email and browser histories with little more than the approval of a manager in the field.”

About the Author

Phoenix Harris

Ms. Harris was named one of the "Top 100 Trial Lawyers" by the National Trial Lawyers Association in 2014, "Top 40 Under 40" in 2015, "Top Lawyer" by Who's Who Global Directory, and a "Rising Star" by Super Lawyers in 2016. In the past year alone, Ms. Harris has been responsible for dismissals, acquittals, or reduced charges in many serious cases where her clients were unjustly charged, such as: accessory to homicide, felonious mob assault, attempted malicious wounding, robbery, abduction, arson, possession with intent to distribute, burglary, counterfeiting, sodomy with a minor, child abuse, domestic assault, and more

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