Can the FBI Monitor Your Web Browsing Without a Warrant?
EFFector Vol. 18, No. 2 January 14, 2005
EFF Demands Answers from DOJ about PATRIOT Act Surveillance
Washington,
DC – [Friday] the Electronic Frontier Foundation (EFF) filed a
Freedom of Information Act (FOIA) request with the FBI and other
offices of the US Department of Justice, seeking the release of
documents that would reveal whether the government has been using the
USA PATRIOT Act to spy on Internet users' reading habits without a
search warrant.
At
issue is PATRIOT Section 216, which expanded the government's authority
to conduct surveillance in criminal investigations using pen registers
or trap and trace devices (“pen-traps”). Pen-traps
collect information about the numbers dialed on a telephone but do not
record the actual content of phone conversations. Because of this
limitation, court orders authorizing pen-trap surveillance are easy to
get – instead of having to show probable cause, the government need
only certify relevance to its investigation. Also, the government
never has to inform people that they are or were the subjects of
pen-trap surveillance.
PATRIOT expanded pen-traps to include devices that monitor Internet communications.
But the line between non-content and content is a lot blurrier online
than it is on phone networks. The DOJ has said openly that the
new definitions allow pen-traps to collect email and IP addresses.
However, the DOJ has not been so forthcoming about web
surveillance. It won't reveal whether it believes URLs can be
collected using pen-traps, despite the fact that URLs clearly reveal
content by identifying the web pages being read. EFF made its
FOIA request specifically to gain access to documents that might reveal
whether the DOJ is using pen-traps to monitor web browsing.
“It's
been over three years since the USA PATRIOT Act was passed, and the DOJ
still hasn't answered the public's simple question: 'Can you see
what we're reading on the Web without probable cause?'” said Kevin
Bankston, EFF Staff Attorney and Bruce J. Ennis Equal Justice Works
Fellow. “Much of PATRIOT is coming up for review this year, but
we can never have a full and informed debate of the issues when the DOJ
won't explain how it has been using these new surveillance powers.”
The law
firm of DLA Piper Rudnick Gray Cary assisted EFF in preparing the FOIA
request and will help with any litigation if the DOJ fails to respond.
FOIA request:
http://www.eff.org/cgi/tiny?urlID=378
For this release:
http://www.eff.org/news/archives/2005_01.php#002213
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