Can the government look at your web habits without a warrant? Senators hope to clarify that.

The Senate rejected by one vote a proposal to require the government to get a search warrant before it investigates people’s digital history.
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By David Ingram

Searches on Google may reveal a person’s deepest secrets, their true loves and enemies, or even just their weekly meal planning.

And all that information and more may be available for inspection by the U.S. government — possibly even without a warrant.

A debate in the Senate this week provided a stark reminder that while the debate about internet privacy these days usually revolves around creepy advertisements and data collection by big tech companies, the country is still wrestling with how much authority to give federal prosecutors to spy on people’s everyday internet activity.

The Senate on Wednesday rejected by one vote a proposal to require the government to get a search warrant from a court before it investigates people’s history on search engines and web browsers.

The proposal, which was put forward as an amendment to a bill seeking to reauthorize the Foreign Intelligence Surveillance Act, needed 60 votes but received 59. It had bipartisan sponsorship from Sens. Ron Wyden, D-Ore., and Steve Daines, R-Mont.

The fact that government lawyers don’t need a warrant — at least in cases relevant to national security — dates back nearly two decades to a provision of the Patriot Act passed hurriedly in the aftermath of the Sept. 11, 2001, terror attacks.

But it’s a carve-out that many Americans may not remember agreeing to, if any of them ever knew about its sweeping possibilities in the first place.

“You ask the average person and they think what they do on the internet is among the most sensitive pieces of information about them,” Neema Singh Guliani, a senior legislative counsel with the American Civil Liberties Union, said.

It's not clear how often the Department of Justice has used the Patriot Act provision known as Section 215 to obtain data on people’s browsing history or search queries. Tech companies such as Google, Microsoft and Mozilla are legally prohibited from giving granular details about the national security requests they receive.

Sen. Ron Wyden speaks during a Senate Intelligence Committee nomination hearing for Rep. John Ratcliffe on Capitol Hill in Washington, on May. 5, 2020.Andrew Harnik / Getty Images file

Google, which operates both the most-used search engine and most-used web browser, Chrome, said in its most recent transparency reports that it receives between zero and 499 requests for metadata in any given six-month period.

Search and browser history can reveal people’s personal thoughts like perhaps nowhere else, serving as a kind of electronic confession booth as people put down their guards and stare into phones and computer screens. Researchers have used anonymized search data to study, for example, where certain racial slurs are most common.

The importance of the internet has only grown since 2001, which was six years before the introduction of the first iPhone. Now, as people are staying home during the coronavirus pandemic, their lives are lived even more online.

“In the current context, so much of our outside life has been shifted online, and to not have the laws to ensure that information is safeguarded and protected the way the Fourth Amendment envisioned is something that should give people pause,” Guliani said.

The Fourth Amendment guarantees Americans the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and lays out the requirements for the government to get a warrant.

People may wonder if the amendment has lost some effect after more than 220 years. Some 63 percent of Americans do not think it is possible to go about their daily lives without government entities collecting data about them, according to the Pew Research Center, and 84 percent say they feel very little or no control over data collected by the government.

Some of the most powerful companies in tech, including Apple, Facebook, Google and Microsoft, had lined up behind the Wyden-Daines amendment.

The companies belong to a coalition called Reform Government Surveillance that said in a statement it supported the effort to “clarify that a business records request under the Foreign Intelligence Surveillance Act could never be used to obtain browsing and search history information.”

Mozilla, which runs the Firefox web browser, said it was disappointed by the vote.

“Americans deserve the strong protections for their online activities provided by the proposed amendment,” Ferras Vinh, a policy manager at Mozilla, said in a statement. “It would have made clear that the government needs a warrant for browsing and search history, which may provide an intimate portrait of our health, our finances, and our daily lives.”

The Justice Department did not respond to a request for comment Thursday. In congressional testimony last year, government lawyers said they opposed curtailing Section 215 because they said a broad law was helpful in terrorism investigations.

And prosecutors need to pass at least one hurdle before viewing someone’s internet history. Before the Justice Department can demand records from a business such as Google, it must first obtain an order from the Foreign Intelligence Surveillance Court, a secretive court made up of federal judges from around the country.

For standard criminal investigations not relevant to national security, prosecutors seeking to compel evidence from a web browser or search engine must go the traditional warrant route.

Though the amendment to require a warrant in all cases failed, the debate isn’t necessarily over. A larger package to reauthorize the country’s surveillance laws must go back to the House before it heads to the president’s desk, and advocates said they would like to see members take up the question.

Wyden and Daines said in separate statements Thursday that they plan to keep pressing it.

Wyden said a “large bipartisan majority of 59 senators” supported the amendment. “I am confident that if it were to come up again, this important protection of Americans’ rights would pass,” he said.