“Anyone who was alive on this planet knows about the attacks in Orlando and probably knows there’s a heightened concern,” Sen. John McCain (R-Ariz.), one of the amendment’s sponsors, said Tuesday. | AP Photo Measure to expand FBI surveillance power stalls in Senate

The Senate failed to advance a GOP proposal Wednesday that would broaden the FBI’s ability to obtain internet records from technology companies, dealing a blow to Republicans who want to expand the government's intelligence capabilities after the Orlando, Fla., nightclub shooting this month.

The measure, attached as an amendment to a Justice Department spending bill, received a vote of 58-38, falling two votes short of the 60-vote threshold needed to move forward. GOP lawmakers have been banking on a shift in sentiment since last year, when Congress voted to curb the NSA’s surveillance powers as part of reforms driven by revelations from Edward Snowden.


Senate Majority Leader Mitch McConnell told reporters that he hopes to bring the amendment back up for consideration. He changed his vote at the last minute to oppose the measure, a procedural maneuver that lets him bring it to the floor again at a later time.

The amendment, sponsored by Sens. John McCain (R-Ariz.) and Richard Burr (R-N.C.), would allow the FBI to use National Security Letters — which don’t require judicial approval — to obtain internet records like email metadata and browsing history as part of terrorism investigations. It would also make permanent the PATRIOT Act’s “lone wolf” provision, which intelligence officials use to monitor terrorism suspects who aren’t connected to overseas organizations.

The FBI has long pushed for the change, which it says is akin to fixing a typo in surveillance law. But civil liberties advocates and tech companies oppose the amendment, arguing that it would give government officials new power to obtain revealing information about a person with no court oversight. They also say the government can easily get the same kind of information with an order from the Foreign Intelligence Surveillance Court, and do so rapidly in emergencies.

Senators “saw in the language of the McCain amendment that this was far more intrusive,” said Sen. Ron Wyden (D-Ore.), one of the proposal's biggest critics. “Today, when everyone counted our side out, we got our message out.”

But the narrow vote leaves questions about whether opponents can withstand another effort to pass the proposal. Republicans effectively need one more vote to approve it, assuming McConnell switches back to the yes column. The GOP sees a likely ally in Sen. Dianne Feinstein, the top Democrat on the Senate Intelligence Committee, who missed Wednesday's vote due to a "family health matter" in California, her spokesman said.

"I know Sen. Feinstein ... has voted for this provision as part of the intelligence reauthorization. I don't want to be presumptuous, but I do intend to discuss it with her," said Senate Majority Whip John Cornyn (R-Texas).

Burr, the Senate Intelligence chairman, said in a statement after the vote that he "looks forward to another opportunity for Congress to take action to enable law enforcement to protect Americans from the increasing terror threat.”

Republican leaders held open the vote for nearly an hour Wednesday in the hope of reaching the 60-vote threshold. Sens. Ted Cruz (R-Texas) and Jeff Flake (R-Ariz.) — two lawmakers who were early supporters of the USA Freedom Act, the NSA reform bill that passed last year — voted yes on expanding the FBI's powers. Sen. Dan Sullivan (R-Alaska), who first voted no on the amendment, later switched his vote to yes. But six Republicans voting against the measure helped derail it, including Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah).

GOP supporters of the change have sought to assuage privacy-minded critics, saying the measure only applies to metadata and can't be used to force tech companies to hand over the content of a suspect’s communications.

“It will allow the FBI to collect the dots so they can connect the dots, and that's been the biggest problem they've had in identifying these home-grown radicalized terrorists like the shooter in Orlando,” Cornyn told reporters Tuesday.

Republicans started to push the surveillance update even before Orlando. A similar provision is included in the chamber’s yet-to-be-approved 2017 Intelligence Authorization bill, and Cornyn sought to add it to an email privacy bill that is stuck in the Senate Judiciary Committee.

Kate Tummarello contributed to this report.