Can the FBI Monitor Your Web Browsing Without a Warrant?

Jan. 14, 2005

Type: discussion

* Can the FBI Monitor Your Web Browsing Without a Warrant?

EFF Demands Answers from DOJ about PATRIOT Act Surveillance

Washington, DC - Today 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?urlID78>

For this release:
<http://www.eff.org/news/archives/2005_01.php#002213>