As Congress Looks To Give FBI Broad Powers To Sniff Through Your Browsing History Sans Warrant, Wyden Asks ODNI How Often It's Used

from the wyden-siren dept

The Wyden Siren is blaring. If you're unfamiliar, Senator Wyden has a pretty long history of what is generally known as Wyden Siren letters to the Director of National Intelligence. Wyden, one of the few Senators who has consistently shown a belief in protecting the civil liberties of Americans, has spent over a decade sending letters to the Director of National Intelligence that always ask questions about how often certain very sketchy surveillance techniques are being used. And, every time he does so, it tends to be a signal that the method in question is used to a massive degree, while the intelligence community is running around insisting that it's nothing to be concerned about. If we've learned one thing, however, in all these years, it's that when Wyden asks these types of questions, it means you'd best pay attention, and the activity in question is happening way more than anyone thought before.

The latest, as first spotted by Zack Whittaker, is Wyden's letter to Acting Director of National Intelligence, Richard Grenell asking about how often the intel community and the FBI use their powers to spy on web surfing behavior:

Current law requires the DNI to report publicly on the number of targets of Section 215 collection and the number of "unique identifiers used to communicate information" the government collects. In its annual Statistical Transparency Report, the Office of the Director of National Intelligence has used email addresses as an example of a "unique identifier." While this may help put into context the scale of the government's collection of email communications, I am concerned it does not necessarily apply to web browsing and internet searches. This ambiguity creates the likelihood that Congress and the American people may not be given the information to realize the scale of warrantless government surveillance of their use of the internet. I therefore request that you respond to the following questions:

How would the government apply the public reporting requirements for Section 215 to web browsing and internet searches? In this context, would the target or "unique identifier" be an IP address?

If the target or "unique identifier" is an IP address, would the government differentiate among multiple individuals using the same IP address, such as family members and roommates using the same Wi-Fi network, or could numerous users appear as a single target or "unique identifier"?

If the government were to collect web browsing information about everyone who visited a particular website, would those visitors be considered targets or "unique identifiers" for purposes of the public reporting? Would the public reporting data capture every internet user whose access to that website was collected by the government?

If the government were to collect web browsing and internet searches associated with a single user, would the public reporting requirement capture the scope of the collection? In other words, how would hte public reporting requirement distinguish between the government collecting information about a single visit to a website or a single search by one person and a month or a year of a person's internet use?

The context of all of this, of course, is the effort going on in Congress right now to renew various surveillance authorities for the NSA (which the FBI also gets access to via "backdoor searches" that require no warrant). Wyden has been pushing back against those kinds of backdoor searches for years, and in response, those putting together the renewal package seem to have decided that they should just move the backdoor to the front door, and give the FBI more explicit power to search through your browser history and internet searches (as collected by the NSA) without a warrant.

Wyden, of course, put forth an amendment to require a warrant for such searches, and that amendment fell short by just one vote. So even though at least 59 Senators think there should be warrants required for the FBI look through your browsing history, the bill still allows it (and is currently being debated in the House).

Of course, the reality here is not much of a surprise. If Grenell responds at all, any substantive response will be given in a private, classified way that means the public will not find out the answers to most of these questions. But take it from someone who has been reading these letters for many years now: each of those questions reveals exactly what the answer is almost certainly going to be. The FBI's warrantless backdoor searches of your internet surfing habits is likely to be much broader and more widespread than most people expect. And it's likely that if your IP gets snarfed up in a search, it means that they can look through not just your web surfing, but everyone who shares the network with you. Without a warrant.

Even in a normal time this should be a huge scandal. But it never is because no matter which President is in charge, it seems like they all agree that warrantless surveillance of Americans is important and should be expanded. But it's particularly ridiculous in these times, when you have a large chunk of Congress that has no reason to believe the DOJ won't abuse its powers for partisan political purposes, and the other large chunk of Congress insisting that the evil "deep state" FBI has been illegally spying on them and their friends.

Under such conditions, it should be fairly obvious that Congress should slap a warrant condition on any slurping up browsing history. And yet, that's just not happening.

Filed Under: 4th amendment, backdoor searches, browser history, fbi, fisa, nsa, odni, patriot act, renewal, richard grenell, ron wyden, warrants, wyden siren