The Government Probably Should Not Have Warrantless Access to Your Browser History

Businessman hand browsing internet websites on his laptop

It is no secret that federal law enforcement wants access to a lot of computer data, whether that lives in the cloud, on your machine, or on the servers of web-based services you use every day. The Department of Justice issues five gag orders to Microsoft per day demanding that Microsoft allow them to search cloud data while at the same time telling Microsoft they can’t tell the targets about it. The FBI recently argued to a court—successfully—that it should be allowed to hack computers without a warrant because computers can get hacked by other non-government actors anyway.

Right now, the annual Intelligence Authorization Act is making its way through Congress. It contains a terrible provision seeking to allow warrantless access to people’s browser history.

A provision of the authorization bill would allow the Federal Bureau of Investigation to use national security letters, which do not require a warrant, to compel companies such as Alphabet Inc’s Google and Facebook to hand over certain Internet records. These would include email metadata, some browsing history and social media log-in information.

As Senators Ron Wyden and Martin Heinrich point out while explaining their opposition to the bill over at Slate, your browser history likely contains a massive amount of personal data.

If you know that a person is visiting the website of a mental health professional, or a substance-abuse support group, or a particular political organization, or a particular dating site, you know a tremendous amount of private and personal information about him or her. That’s what you get when you can get access to their web browsing history without a court order.

For attorneys, of course, there is a concern that your browser history might include information about your clients: online research you have conducted, addresses you’ve looked up that could pinpoint a client’s location, etc. And that doesn’t even begin to address the fact that it would scoop up your sensitive private information as well.

There are ways, theoretically, to keep browser history off the books if this bill were to pass. Major browsers allow you to browse privately, ensuring that they don’t save your data. (Privacy advocates would tell you to do this all the time, but doing so means you lose the convenience of all of your bookmarks and history being accessible, which many people don’t like.) That said, it shouldn’t be incumbent upon you, as an end user, to take steps to keep that data private. It is the exact sort of information which should require a warrant. Here’s hoping the bill—at least this portion of it—fails.


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