Senate leaders eagerly championed FBI Director James Comey’s 2016 request for more power to seize Internet browsing histories without court oversight in national security investigations. But after coming just two votes from victory, the FBI’s “number one legislative priority” hasn’t received much attention.
It’s unclear what explains the silence on what once was a multi-front legislative fight, and the quiet isn’t necessarily reassuring to privacy advocates, who consider Comey’s reform proposal troubling.
Supporters of the request aggressively sought opportunities to pass it two years ago. The idea had enough backing in the Senate Judiciary Committee to pass as an amendment to an unrelated bill to shield older emails from government collection. Bill sponsors pulled the plug to avoid the amendment, arguing it would reduce property rights.
The measure was attached in 2016 to an intelligence authorization bill by the Senate Intelligence Committee, although amid criticism, the amendment was defeated in a Senate vote over a multiagency spending bill, falling just short of 60 needed to pass, with 38 senators opposed and 58 in favor.
Votes on surveillance policy can fluctuate from year to year, even when there’s not an election. Privacy advocates, including the Electronic Frontier Foundation, warned the idea would “probably be voted on again soon.”
That didn’t happen, however, as President Trump won the November 2016 election before firing Comey the following May. In the Trump era, Republican lawmakers talk more about investigating anti-Trump bias within the FBI, and less about giving the bureau new surveillance powers.
Experts were reluctant to speak on the record about why they believe the fight stalled.
One policy advocate who opposed expanding national security letter authority told the Washington Examiner that it is important to discern whether the FBI is relying on other authorities or methods to get this information without a court order.
In technical terms, the legislative battle was over whether the FBI can order companies to hand over “electronic communication transactional records” with a national security letter. Supporters call the reform the “ECTR fix.”
National security letters are shadowy administrative subpoenas for information issued by the FBI for records “relevant to an authorized investigation” into international terrorism or intelligence activities. The requests often are accompanied by a gag order disallowing the recipient from discussing it.
The FBI would gain an ability to acquire a person’s Web browsing history and IP address without any court oversight if the reform passed, opponents say. The FBI previously demanded these records using national security letters before a 2008 opinion from the Justice Department’s Office of Legal Counsel found that wasn’t allowed.
Conceivable alternative routes to the same information include more cooperation from companies, or reinterpretation of existing surveillance statutes. Only some members of Congress have access to information about how the intelligence community operates.
It’s plausible some electronic communication transactional records are accessible through programs operated under Section 702 of the Foreign Intelligence Surveillance Act, which governs collection of Internet records directly from the Web’s backbone.
Congress has defeated efforts to protect Internet records of Americans “incidentally” collected under Section 702 programs that target people overseas.
The policy advocate said it was unclear if the FBI has found an alternative method to acquire the information, but noted that government surveillance practices historically are opaque, relying on secret legal interpretations.
The office of Senate Majority Whip John Cornyn, R-Texas, one of the most active promoters of Comey’s request for more power, said the fight’s not over, even if it hasn’t gotten much traction lately.
An aide told the Washington Examiner that Cornyn “remains committed to this and is looking for opportunities to pass it.”
The FBI’s national press office did not respond to a request for comment.
