And Now the Republicans Will Try to Use Orlando Attack to Undermine Citizens' Rights

Attempt to expand unwarranted FBI surveillance authority fails (barely) in Senate.


GOP senators
Michael Reynolds/EPA/Newscom

We know full well that the failure to stop Omar Mateen's deadly attack on a gay nightclub in Orlando, Florida, was not because the federal government didn't know about him or didn't know that people had concerns about him. He was under government surveillance for some time, but they failed to predict (and perhaps it was not possible to predict) that he would act out in such an explosive fashion.

Just as gun control advocates are using this incident to try to pass gun control laws that have absolutely no relationship with what happened in Orlando and wouldn't have prevented it, surveillance state advocates are using the Orlando incident to push for more snooping powers that have nothing to do with what happened.

The legislation to stop people on federal watchlists from buying guns had been previously proposed, and the Orlando incident was used to create a groundswell to try to get it passed. The push failed, but now there's compromise legislation on the table for gun purchase bans targeting those on more exclusive, smaller no-fly lists.

A similar background is true for this surveillance push. I made note of it in May, and in the wake of Mateen's attack, now surveillance supporters (mostly Republicans but also a few notable Democrats) in the Senate are attempting to give the FBI more snooping powers. The vote failed this morning to get enough support for cloture, ending at 58-39, two votes short of the 60 threshold. It was actually one vote shy of cloture toward the end, but realizing they didn't have enough support, Sen. Mitch McConnell (R-Ky.) changed his vote to no so that he could bring it back later for reconsideration. (The Electronic Frontier Foundation warns that a second attempt to pass it could happen later today)

The vote is over a "gap" in what can been collected under National Security Letters (NSL's). These orders are special secret demands whose uses were greatly expanded after September 11 and authorize the feds to demand that tech companies provide a list of specific data about a targeted user, all without a warrant. Furthermore, the tech companies are gagged to prohibit them from warning the user or the public about the data collection or even to let the public know they had received an NSL.

But there are some gaps in the kind of data an NSL could gather, and despite the controversies behind their use in the first place, the FBI has been pushing to expand them to collect more metadata about email communications and some browser search history data. The FBI had believed that they already had this authority but were told that wasn't the case in 2008. They want this expansion in snooping to be made permanent.

The push pits Republican surveillance enthusiasts like Sens. John McCain (R-Ariz.), the amendment's sponsor, and Sen. Richard Burr (R-N.C.) against Sen. Ron Wyden (D-Ore), a stalwart opponent of expanding federal surveillance. Reuters notes:

"In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations," Senator John McCain, an Arizona Republican and sponsor of the amendment, said in a statement.

The bill is also supported by Republican Senators John Cornyn, Jeff Sessions and Richard Burr, who chairs the Senate Intelligence Committee.

Privacy advocates denounced the effort, saying it seeks to exploit a mass shooting in order to expand the government's digital spying powers.

Senator Ron Wyden, an Oregon Democrat, criticized a similar effort last month as one that "takes a hatchet to important protections for Americans' liberty."

It's also worth noting that the Obama administration supports this expansion, and the FBI has taken the position that the failure to permit even wider surveillance is actually just a "typo" that needs to be corrected.

Read more from the Electronic Frontier Foundation about the serious problems with expanding this scope in surveillance here.