On Tuesday, January 16, the move to reauthorize a controversial mass surveillance law cleared a critical hurdle as the Senate voted 60-38 to invoke cloture [3] on the bill, opening the door for the Senate to vote on the bill.

The bill, which would reauthorize Section 702 of the FISA Amendments Act of 2008, and which passed the House last week by a vote of 256 to 164, would extend the National Security Agency’s (NSA) ability to collect from U.S. companies the e-mails and other communications of foreign targets located outside the United States for a period of six years, as reported by the Washington Post [4].

Prior to the vote, a bipartisan group of senators led by Sens. Rand Paul (R-KY) and Ron Wyden (D-OR) had threatened to filibuster the bill, which they argued was a threat to Americans’ Fourth Amendment rights. The senators argued in a letter circulated among their Senate colleagues that the law does an end-run around the U.S. Constitution by permitting information collected without a warrant to be used against Americans in domestic criminal investigations. The group of senators was looking to place new limits on the government’s ability to use communications involving American citizens. But by meeting the 60-vote threshold, a filibuster cannot happen under Senate rules.

“While ABA applauds the efforts of Senators Paul and Wyden to place limits on NSA’s ability to collect communications from American citizens without a warrant, we are extremely disappointed with the Senate’s vote to invoke cloture,” said the American Booksellers Association’s David Grogan, director of the American Booksellers for Free Expression (ABFE), Advocacy, and Public Policy. “Allowing the FBI and other law enforcement agencies to conduct searches without probable cause is extremely troubling. History has shown that this opens the door to abuses, such as government spying on dissident groups involved in legal and constitutional protests against policies of the government. This threat then produces a chilling effect on American citizens’ constitutional right to free speech. ABFE will continue to fight against this overreach.”

The intelligence community argues, however, that Section 702 is a key tool, the Post article noted. Privacy groups oppose the law, noting that under Section 702, the NSA incidentally collects a great deal of communications from American citizens without a warrant.

President Trump added some confusion to the process by initially tweeting against the “controversial” amendment, claiming that Section 702 may have been used to “so badly surveil and abuse” Trump’s presidential campaign, the Washington Post article reported. After discussions with House Speaker Paul D. Ryan (R-WI) and White House Chief of Staff John Kelly, the president backed off his previous tweet.

In a letter to fellow senators circulated on January 12, Senators Paul, Wyden, Mike Lee (R-UT), and Patrick Leahy (D-VT) urged their colleagues to oppose the reauthorization of Section 702: “It endorses the possibility that the government will resume ‘about’ collections on Americans, a practice that the government was actually forced to abandon last year due to significant noncompliance with privacy protections ordered by the FISA Court. And it does nothing to protect innocent Americans from expanding warrantless surveillance.”

The Senators conclude: “The FISA Amendments Reauthorization Act, however, further expands the risks of unconstitutional spying on innocent Americans, and we encourage you to join us in opposition to this bill. We believe that a clean, short-term extension would be markedly preferable to this legislation.”