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US Senate strikes down open-access FBI hacking warrant by just one honest vote

Fourth Amendment plays second fiddle to the Second

The US Senate has struck down an amendment that would have allowed the FBI to track internet histories and communications without judicial oversight, but a re-vote could be called as soon as today due to Senate rules.

The amendment [PDF] to the Commerce, Justice, Science, and Related Agencies Appropriations Act would have given the FBI the right to use National Security Letters (NSLs), which compel communications companies to hand over a customer's "transactional records," including their browsing history, time spent online, and email metadata, but not the content of messages.

In addition, it would have made permanent a provision in the Patriot Act that would allow the same powers for those deemed to be "individual terrorists to be treated as agents of foreign powers," a measure aimed at tracking so-called lone wolf operators.

It was introduced on Monday by Senators John McCain (R-AZ) and Richard Burr (R-NC) in response to the shootings in Orlando, but is part of a wider push to allow the FBI to use NSL letters for legal surveillance. Senator John Cornyn (R-TX) has named the issue the FBI's top legislative priority and has tabled a further amendment to allow similar powers to law enforcement.

"It will allow the FBI to collect the dots so they can connect the dots, and that's been the biggest problem that they've had in identifying these homegrown, radicalized terrorists, like the shooter in Orlando," he said before the vote.

In the end it came down to a single vote. The hour-long Senate vote was settled at 58-38 (and 4 abstentions), with Senate Majority Leader Mitch McConnell (R-KY) voting against the amendment at the last minute.

This wasn't due to a Damascene conversion, but because it allows him to file a Motion to Reconsider at any time to bring another vote – possibly as soon as this afternoon but more likely before the July 15 recess.

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