Over a third of Senate Democrats joined 41 Republicans and one Independent, Sen. Angus King (I-ME), on Tuesday, January 16, 2018, providing the critical missing votes needed to quash any further debate or amendments on S.139, considerably expanding and strengthening the government’s vast spying power. More commonly known in the Senate as the FISA Amendments Reauthorization Act of 2017, the bill would reauthorize Section 702 of the FISA Act for six years, renewing a key surveillance authority for the National Security Agency (NSA) until 2023, and consolidate law enforcement agencies’ power to conduct warrantless “backdoor searches” on the private digital communications of U.S. citizens not under investigation or suspected of a crime.
The law was first passed in 2008 after the George W. Bush administration’s secret warrantless wiretapping was made public, effectively to legalize retroactively whatever blatantly unconstitutional practices the administration was already performing in secret.
The decade-old law allows the NSA to sweep up communications between Americans and foreign “targets” without a warrant. Consequently, the incidental result is that the NSA accumulates massive aggregate amounts of Americans’ wholesale digital communications — including entirely domestic ones — under the pretext of “targeting” foreigners.
In 2013, documents leaked by NSA whistleblower Edward Snowden revealed that the NSA vacuums up a tremendous amount of wholly domestic communications through the program as well.
The Snowden leaks illustrated how the law serves as the basis for at least two of the NSA’s largest surveillance programs: PRISM, which collects communications from U.S.-based internet companies, and Upstream, which scans the data passing through internet junctions as it enters and exits the U.S.
In contrast to PRISM, “Upstream” collection involves the collection of communications — both their metadata and their content — as they pass through undersea fiber-optic cables. According to renowned surveillance journalist James Bamford, PRISM was designed to fill “gaps in the coverage” provided by the NSA’s Upstream collection. Those gaps exist both because certain communications are not available through Upstream, and because PRISM collection avoids encryption that may protect certain “Upstream”-collected communications. In an August 2013 article, The Guardian revealed a previously undisclosed 2011 “backdoor searches” loophole that provided the NSA with a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant, once the government is already in possession of this data.
The bill has already surpassed its first major hurdle, clearing the House on January 11 by a 256-164 vote with considerable backing from Democratic leadership, before making its way in front of the Senate. Following the House vote, Senators Rand Paul (R-KY) and Ron Wyden (D-OR) vowed to filibuster the Section 702 bill when it reached their chamber.
Tuesday’s cloture vote was an attempt to sidestep the promised filibuster, which had five participants — three Democrats and two Republicans — on the day of the vote. Critics of the bill have urged support for the USA Rights Act, a surveillance reform-oriented alternative to the straight renewal of Section 702.
The motion, which barely passed the Senate by a 60-38 vote, virtually guarantees that the final bill will pass later this week and be ready for President Trump to sign into law by Friday at the earliest. Additionally, it shuts down any opportunity for meaningful debate on whether privacy protections should be added, and closes it from any further amendments.
In total, 18 Democratic Senators — including Senator Dianne Feinstein (D-CA), who had previously proposed an amendment to restrict the FBI’s surveillance authority — voted in support of the motion.
The 18 Democrats were: Tom Carper (DE), Bob Casey (PA), Catherine Cortez Masto (NV) Joe Donnelly (IN), Tammy Duckworth (IL), Dianne Feinstein (CA), Maggie Hassan (NH), Heidi Heitkamp (ND), Doug Jones (AL), Amy Klobuchar (MN), Joe Manchin (WV), Claire McCaskill (MO), Bill Nelson (FL), Gary Peters (MI), Jack Reed (RI), Jeanne Shaheen (NH), Mark Warner (VA), Sheldon Whitehouse (RI).
Republicans tried to ram through a different incarnation of the bill last month, based on a more draconian version passed by the House Intelligence Committee. But leadership backed off after determining they didn’t have enough votes to pass it, according to multiple congressional sources.
The new version of the bill, posted on the Rules Committee website late Friday, is designed to get the buy-in of Republicans on the Judiciary Committee). It incorporates compromise language taken from a separate bill passed out of that committee in November, which included some modest limitations on existing authorities, including the reform to backdoor searches.
The bill takes aim at one of the key problems with the original law: that Section 702 doesn’t limit how data can be used by federal law enforcement. That has given rise to the “backdoor search” loophole, in which the NSA shares certain kinds of information with the Federal Bureau of Investigation (FBI), which the FBI then uses to search for Americans’ communications without a warrant. This happens because the NSA shares certain types of 702 data with the FBI, who can search the data to access Americans’ communications, circumventing the normal process, which would require a warrant. The FBI’s use of these searches is so extensive and frequent that Justice Department lawyers have compared the process to searching Google.
Privacy advocates have called backdoor searches unconstitutional and urged Congress to close the loophole by requiring the FBI to get a court order to query Americans’ communications.
Republican leadership in the House of Representatives attached a
minor restriction in the bill to get a buy-in from Republicans on the House Judiciary Committee, adding a narrow requirement for the FBI to obtain a warrant before continuing to search emails related to a specific existing criminal investigation that has no relevance to national security.
But the bill carves out giant exceptions to that rule, including for national security cases and whenever the FBI vaguely determines there is a “threat to life or serious bodily harm.” And the bill would continue to allow the FBI to sift through the data before opening a criminal case, even when those searches don’t involve a specific criminal investigation.
Sen. Mark Warner (D-VA), the top Democrat on the Senate Intelligence Committee, lobbied for the bill’s passage on the Senate floor alongside his Republican counterpart, Sen. Richard Burr (R-NC), and Senate Majority leader Mitch McConnell (R-KY). Additionally, Director of National Intelligence Dan Coats appeared at the Senate building in person to stand outside Senate chambers, ready to convince any skeptics of the bill’s merits, Burr revealed.
Warner was able to persuade enough of his colleagues to break with the Democratic leader by highlighting an obvious fact: that the intelligence community has used Section 702 authority to track down terrorists abroad. He cited the case of Haji Iman, the Islamic State’s former finance minister, who was killed in 2016 in a U.S.-backed military operation in Syria.
But critics of the bill contended this reasoning to be a red herring, and that Warner was making a deeply disingenuous and misleading argument. Senators who spoke against the motion pointed out that they weren’t trying to restrict targeting of terrorists overseas; on the contrary, they were simply trying to establish limits on how the government could use the information “incidentally” collected on Americans domestically.
As Tuesday evening’s cloture vote continued for over an hour, slowing down considerably as the final votes trickled in, it eventually wound to a dramatic halt at 58-38, only 2 votes shy of the two-thirds majority of 60 required to advance the motion, and two Senators — John Kennedy (R-LA) and Claire McCaskill (D-MO) — left to vote.
After Kennedy submitted his vote in favor of the motion, McCaskill soon followed his lead, casting the decisive vote in favor of the motion, ending the filibuster at around 7 p.m. Tuesday evening.
The motion was opposed by thirty Democrats including Senate minority leader Chuck Schumer (D-NY), along with eight Republicans, led by Senator Paul and Senator Mike Lee (R-UT).
Speaking against the motion Tuesday, Sen. Rand Paul argued that the entire premise of backdoor searches is unconstitutional:
“Should the government be allowed to search this database to prosecute you for not paying your taxes or for a minor marijuana violation? Absolutely not. Why? Because this information is gathered without a warrant.”
Tuesday’s vote was a major disappointing blow to privacy activists, who saw the sunset of NSA’s unconstitutional spying authority as a strategic reform opportunity for Congress to finally rein in NSA’s warrantless, dragnet surveillance and bulk data collection practices, and restrict how the government can use the information it collects on American citizens.
Most importantly, privacy advocates saw the Senate vote as a monumental defeat, which not only gives vast surveillance powers to Donald Trump, it helps consolidate them for future presidencies.
Here is the full list of senators who voted in favor of the cloture motion Tuesday night. (Ten of the Democrats on the list are up for reelection in November.)