Your web browsing history is exactly as safe from surveillance by the federal government as it was yesterday.

Which is to say, not wide open, but not wildly safe either.

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The Hype

Yesterday afternoon a vote took place in the United States Senate.  Headlines emerged immediately thereafter claiming that certain evil Senators had just “Voted to Let the FBI Seize Your Online Search History Without a Warrant”!  Gasp!  The horror!

The Facts

Here’s the thing, though. Nobody voted to “let” the FBI do anything it wasn’t already allowed to do. Some privacy hawks in the Senate had tried to take that ability away from the Justice Department, but that amendment failed.

The amendment was meant to be attached to the Foreign Intelligence Surveillance Act (FISA) renewal bill. FISA had actually expired a couple months ago and Congress needs to review it. FISA has been long criticized for the secrecy that it allows the government to maintain in conducting investigations, including investigations against American citizens who may be relevant to the investigation of foreign entities and individuals. When Edward Snowden alerted us all to the fact that the NSA was holding on to detailed phone records of American citizens, that was a feature of FISA.

FISA has been around since 1978, and has always allowed the government to conduct “electronic surveillance” upon an application for a warrant to a FISA court. “Electronic surveillance” includes web history.  Once the law was amended in 2008 to essentially eliminate the requirement for warrants, it was game on for sure.  If you were swept up in a FISA investigation, your internet history has been collected and investigated, and more than likely you were never told.

Senator Ron Wyden (D) of Oregon and Senator Steve Daines (R) of Montana introduced an amendment to eliminate internet browsing history from the records that the Justice Department could obtain without a warrant. The amendment failed by one vote. So we’re right back where we’ve been since at least 2008.

Moving towards privacy

There were a few pro-privacy measures added to this renewal of FISA. The role of the amici curiae will be expanded – a body of experts independent of the government who advises the FISA court and assures the court access to the necessary files to review a case. The bill ends the “call details record program” that Ed Snowden told us about. Cell phone location information is also no longer the subject of a FISA warrant after the Supreme Court said otherwise in Carpenter v. United States (2018).

Next Steps

The bill still needs to go back to the House for further amendment and the fact that the browsing history was so close might indicate that the Senate is interested in more privacy-protective measures before this FISA renewal is finalized. We’ll see what the next few days bring, but in the meantime, relax. Your internet browsing history is as protected as it ever was.

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