Sen. Wyden seeks allies ahead of FBI surveillance amendment revote

Sen. Ron Wyden, D-Ore., will meet with Senate party colleagues before the July 4th holiday weekend to discuss how to once again defeat a GOP proposal to expand the FBI’s surveillance capabilities when it reaches a revote, he said Thursday while speaking at D.C.-based think tank New America. 

Wyden similarly met Thursday with representatives from Google, Twitter and Facebook to mount a defense, Politico reported.

Filed as an amendment to the Department of Justice’s funding bill, the legislation would effectively enhance the FBI’s ability to use so-called National Security Letters, or NSLs — enabling law enforcement to compel companies to hand over electronic communications without the need for a warrant.

“No one expected us to get 38 votes, I will tell you that much, and with very influential leaders from both parties,” Wyden told FedScoop in an interview. 

After the legislation fell just two votes short of the 60 needed to move forward, Senate Majority Leader Mitch McConnell, R-Ky., switched his vote so that the measure could be considered for a revote in the future. Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., a likely supporter, was absent during the first vote.

Wyden declined to comment when asked if he knew of senators who planned to flip their decision during a potential revote, instead answering: “I have been in contact with senators. I think I will leave it at that.” 

The FBI issued nearly 13,000 NSLs in 2015 alone. And while historically these NSLs only ask for basic subscriber and toll billing information, the FBI has pushed to expand its scope by requesting companies to voluntarily hand over other data like email header information and the internet browsing history of customers. 

Wyden called support for the NSL expansion measure a “knee-jerk reaction,” as it happened just days after a gruesome massacre in Orlando, Florida, that is believed to have connections to the Islamic State.

Sen. Mike Lee, R-Utah., was one of just six Republicans in the upper chamber to vote nay. In an email sent to FedScoop, Lee said he had no plans to change his vote. 

According to Lee, the measure would give “the government unfettered access to a rich trove of information detailing American citizens’ online activities. All without probable cause, without a warrant, and without any kind of judicial review.”

“These procedural hurdles are essential safeguards that protect our privacy against unfettered government intrusion and ensure our safety, and that’s why I voted against this amendment,” Lee said. 

Wyden — who visited New America to keynote a panel discussion specifically focused on changes made to Rule 41 of the Federal Rules of Criminal Procedure — explained that topics concerning American freedom, personal privacy and security should be up for debate in Congress rather than be decided on by officials in the departments of Justice or Defense, the intelligence community and the White House. 

Changes made to Rule 41 earlier this year — passed by the Supreme Court in April and to be enacted in December — give law enforcement new authority to hack into electronic devices that were breached by botnet-style attacks. 

Congress never voted on Rule 41. Instead, the DOJ received judicial approval directly from the courts. Now, Congress has until Dec. 1 to amend or block those changes.

The added privilege is intended to give investigators a tool to mine for evidence, Justice Department spokesman Peter Carr told Bloomberg. 

“The use of remote searches is often the only mechanism available to law enforcement to identify and apprehend criminals,” Carr said. 

If enacted, the changes will also enable federal law enforcement agencies to obtain warrants to hack a target computer even when the location of that hardware is unknown — calling into question longstanding limits tied to law enforcement jurisdiction. 

Wyden worries that broad language in updates to Rule 41 would allow for “mass hacking” by law enforcement — setting a precedent to obtain warrants on any electronic devices that cross the threshold of being infected by a bot, otherwise known as an application that runs automated tasks.

“Nobody can see years into the future to tell us what mass hacking by criminals or by law enforcement will be capable of doing. And if these changes go into effect, there will be no guidelines in place to ensure that the privacy and security of Americans are being protected,” Wyden said.