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Is Big Brother watching you while you surf?

Daily Yomiuri | Jan 24 2005

We tend to think that our Web browsing is mostly anonymous and private, but just how much of our online activity is being monitored by the U.S. government? And under what circumstances?

It turns out that it is impossible to tell, not because it is technically too difficult to determine but because the government refuses to tell us.

Concerned about this potential loss of civil liberties, the Electronic Frontier Foundation (EFF) recently filed a Freedom of Information Act request with various agencies in the Justice Department, including the Federal Bureau of Investigation, to try to shed some light on the subject.

The goal is to get access to documents to determine whether the government has been using the Patriot Act to monitor online reading activities of users without their knowledge or consent, and without a search warrant.

The Patriot Act, as you might recall, was passed quickly and without much public discussion shortly after Sept. 11, 2001. The act expanded several key powers of the government, enabling it to cast a wider net in both physical and electronic surveillance.

The specific area of concern in this case is Section 216, which enables the government to perform surveillance in criminal investigations using pen registers or trap and trace devices, more commonly referred to as pen-traps.

Pen traps record the numbers you dial on a telephone, but do not capture the resulting phone conversations. In the context of the Internet, the Patriot Act enables authorities to use pen-traps to gather e-mail addresses as well as the IP addresses of communicating systems. In fact, the U.S. Justice Department has publicly stated that these activities are within their interpretation of the Patriot Act.

What remains unclear, however, is how the Justice Department treats Web URLs.

At first glance, URLs, or Uniform Resource Locators, clearly represent addresses of Web sites. The issue quickly becomes cloudy, though, when you consider that URLs often also contain references to specific content on the Web.

For example, an address such as could go wrong.html by itself gives some indication of the type of content, especially since Mother Jones is a political publication. Even the high-level address conveys general information about the type of information the reader is about to consume.

Privacy advocates therefore argue that by recording URLs, authorities gain access not only to contact information, but also to varying degrees of the content of the communication. The question they ask is whether we want to give government the unstated authority to collect this type of information without reader consent.

In submitting the Freedom of Information Act request, the EFF is trying to determine whether the U.S. Department of Justice has been using pen-traps to monitor Web browsing activities, and if so, to what extent.

Specifically, the EFF is requesting access to all records (including blank forms) prepared or collected by the Justice Department, the FBI, and Attorney's Office regarding the use of pen-trap devices to monitor electronic communications or Internet-based wire communications (i.e. Voice-over-Internet-Protocol communications).

The idea is to use the acquired information, if and when it is released, to determine exactly where the Department of Justice draws the line between address information and content. The request also seeks all policy directives and guidance issued to government employees to monitor electronic communication.

The request further seeks to gather documents related to all cases of overcollection, where agencies acknowledge that content was captured in addition to address details using pen-trap devices. Any documents that describe how this information was used are also being sought.

The EFF, in making the Freedom of Information Act request, is seeking primarily to create greater transparency in how the government exercises its considerable powers when related to privacy and the Fourth Amendment, which protects against unreasonable search and seizure.

The issue is all the more important because pen traps are comparatively easy for authorities to acquire since they only need to certify relevance to an investigation, not demonstrate probable cause. This places a much lower burden on the government, opening the potential for abuse without proper oversight.

Governments and law enforcement agencies need the ability to be able to conduct criminal investigations. However, the standards and procedures for conducting these investigations must be transparent, documented, interpreted, publicly accepted and completed with oversight and protection for civil liberties.

These conditions are no less relevant in the world of the Internet and World Wide Web. People have a reasonable expectation of privacy when surfing the Web. As the request explains, the Justice Department "has refused to answer the public's very simple question: 'Can the government see what I'm reading on the Web without having to show probable cause?'"

This question is all the more relevant today as key provisions of the Patriot Act are being considered for extension.

The EFF's Freedom of Information Act request states: "The refusal of the Department of Justice to publicly state its interpretation of Patriot Act provisions regarding electronic surveillance has left the public crucially uninformed about how the executive branch is using the expanded surveillance authority granted by Congress in the wake of 9/11."

The issue of Web URLs may seem like a comparatively trivial matter in the overall struggle between government powers and the preservation of privacy and civil liberties. But simple manifestations are often at the heart of greater issues, in this case whether the government should be allowed to refuse to state the basis on which it conducts criminal and noncriminal investigations.

The government is required to respond to the Freedom of Information Act request within 20 business days. The EFF has already stated that litigation is an option should the Department of Justice fail to respond.

As the Patriot Act comes under new scrutiny following its first three years, the government's actions will be closely watched.

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