Skip to main content
 

We just approved warrantless web surveillance

The PATRIOT Act has long been used to justify warrantless surveillance into ordinary Americans. It was a fast follow to the horrors of 9/11, but thanks to a renewal by President Bush, a four-year extension by President Obama, and an extension of important clauses in the USA Freedom Act, an entire generation is now used to the civil rights violations it authorizes.

On Wednesday, the following amendment to the reauthorized USA Freedom Act, sponsored by Ron Wyden, failed by one vote:

(C) An application under paragraph (1) may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information.

Nine democrats, including San Francisco's own Diane Feinstein, voted against the amendment, effectively allowing an American's web browsing data or search history information to be surveilled without a warrant.

The definitions of web browsing information and search history are important here. "Website browsing information" means everything you do on the web, not just through a browser. It's functionally impossible to distinguish web browser activity from APIs hit by an app, say, or an Internet of Things appliance in your home. Manual web browsing is, for most people, a minority of their internet use. APIs represent at least 83% of internet traffic. Your apps and devices send API pings hundreds of times an hour, letting services know about your activity. With this data, it's possible to infer when you're home, traveling, eating, sleeping, talking to a friend, or buying something. In a world where so many of us are so heavily attached to the internet, the ability to warrantlessly scan our web activity comes close to providing barrier-less surveillance of our every move.

Correspondingly, the definition of "search history information" is vague. We immediately think of the literal text history of our search requests, which would be invasive enough; your search data can be used to figure out if you're pregnant, what you're religious views are, and who you're going to vote for. But log into your Google activity dashboard: you'll see more information about what you've watched, location information, topics Google thinks you're interested in, your news history, call and message history, and more. From raw information, Google makes inferences about who you are. That, too, can be accessed.

All of this is to say that Wyden's amendment was a good one, and the representatives who blocked it should be ashamed of themselves. The PATRIOT Act and its successor have been inevitably abused. It is legislation without appropriate checks and balances that protect civil liberties while protecting lives.

There are no great workarounds. Warrant canaries - notices published by a service provider saying that they have not received a subpeona for information - have not been legally tested, and are not definitive. In any event, they do not (and may not) notify the subject of the surveillance.

"Arguing that you don't care about the right to privacy because you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say."
~ Edward Snowden

The best we can do product-wise is use peer-to-peer encryption technology based on open, auditable code, and trust that there are no undisclosed security flaws. I use Signal for texting. Open VPNs like Bitmask are available. But the single biggest thing we can do is to vote out our elected representatives that consistently support surveillance.