“Where such incidents have arisen, they have been the inadvertent result of human error or technical defect and have been promptly reported and remedied,” she wrote. “Through four years of oversight, the committee has not identified a single case in which a government official engaged in a willful effort to circumvent or violate the law.”
When the bill comes to the floor, Wyden will try to address a “loophole” in the 2008 law that “allows intelligence agencies to deliberately search through potentially large piles of communications to find the phone calls and emails of specific Americans,” according to spokesman Tom Caiazza.
“They can do this without getting a warrant or emergency authorization on anyone. This is clearly something that the United States Senate should be debating and it is the reason the senator put a hold on the bill in the first place,” Caiazza said. “When the bill comes to the floor, Sen. Wyden will offer an amendment to close this ‘back-door searches’ loophole and will do everything he can to ensure that it gets the consideration it deserves. A statute as far-reaching and potentially problematic as this should not be extended for five years without floor debate and a vote.”
Wyden’s hold isn’t the only issue unresolved about the legislation.
A bill (HR 5949) that the House passed in September would extend the expiring surveillance authority through the end of 2017; it is similar to the version approved by Feinstein’s committee, which would extend the authority through mid-2017.
When the Senate Judiciary Committee marked up the Intelligence-approved legislation, it pulled the expiration date back to 2015. The two chambers will have to reconcile the three dueling expiration dates.
Then there is the possibility of the Supreme Court allowing a legal challenge. The court did not focus on the constitutionality of the law itself in oral arguments this week but rather whether those challenging its constitutionality had the standing to do so.
If the court rules that the challengers, led by Amnesty International USA, have the right to sue the government, it could open the door to striking down the law.