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Tracking Browser History

The Foreign Intelligence Surveillance Act (“FISA”) of 1978 was meant to protect against the most blatant trespasses into private lives by the government. In the climate of fear and reactionary measures that came in the wake of the 9/11 attacks, a piece of the USA Patriot Act known as Section 215 diminished FISA’s protections while granting the government authority to pry into the expenses of both businesses and individuals.

Watchdog groups such as Demand Progress have charged that federal information-gathering practices have gone far beyond what is allowed by the Constitution, saying that “the executive branch has been in nearly constant violation of FISA and the rules governing surveillance since [9/11], and during this time, it has warrantlessly collected information on virtually every American.”

John Ratcliffe, former director of national intelligence (“DNI”) in the Trump administration, denied that Section 215 had been utilized for gathering data on internet searches. Ratcliffe’s response to Sen. Ron Wyden (D-OR) on November 6, 2020, stated that no “web browsing” data had been involved in any of the FISA court orders issued the previous year.

After an investigation by The New York Times and a contrary statement from the Department of Justice, Ratcliffe released a “corrective action” stating that “one of the 61 orders resulted in the production of information that could be characterized as information regarding browsing.”

Ratcliffe’s admission prompted Sen. Wyden to call for stronger laws guarding privacy.

“The DNI’s amended letter raises all kinds of new questions, including whether, in this particular case, the government has taken steps to avoid collecting Americans’ web browsing information,” said Wyden. “More generally, the DNI has provided no guarantee that the government wouldn’t use the PATRIOT Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

The use of Section 215 to investigate library records caused a national uproar amid the presidency of George W. Bush. Edward Snowden brought to light that Section 215 was later employed by the Obama administration to monitor every phone call in the country. Obama announced in January 2014 an end to the large scale record collection program.

This flagrant abuse of data collection technology brought about the USA Freedom Act in 2015, which limited the scope of the government’s information-gathering.

March 2020 saw the expiration of Section 215. The Senate reauthorized the Freedom Act two months later, attempting to ensure that Americans have some level of privacy from their government. However, a rule prohibiting warrantless surveillance of internet search and browsing history failed by one vote. 

 

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