William Fisher:

Is the US government spying on its citizens’ email and web surfing habits? The Electronic Frontier Foundation (EFF), a group that defends civil liberties on the Internet, believes the answer is probably “yes”. Earlier this month, the San Francisco-based watchdog filed a Freedom of Information Act request with the Federal Bureau of Investigation (FBI) and other US Department of Justice offices.

It is seeking documents that would shed light on whether the government has been using the USA Patriot Act, which curtails some civil liberties as part of the “war on terror”, to spy on Internet users and collect secret information about their on-line activity without a search warrant.

The USA Patriot Act was hastily passed by Congress shortly after the attacks of 9/11. Parts of it are due to expire this year and require re-authorisation by Congress. Under the act, the government can monitor an individual’s web surfing records, use roving wiretaps to monitor phone calls made by individuals “proximate” to the primary person being tapped, access Internet Service Provider records, and monitor the private records of people involved in legitimate protests. Section 216 of the act gives the government permission to conduct surveillances in criminal investigations using pen registers or trap and trace devices (“pen-traps”).

The Justice Department says the new definitions allow pen-traps to collect email and Internet Protocol addresses. However, the agency has been less forthcoming about web surveillance. It will not reveal whether it believes URLs (Uniform Resource Locator, the global address of documents and other resources on the web) can be collected using pen-traps, despite the fact that URLs clearly reveal content by identifying the web pages being read.

The Justice Department’s implementation of the Patriot Act has been widely criticised, and the American Civil Liberties Union (ACLU) has launched a 3.5-million-dollar campaign to “promote a public debate about proposals and measures that violate civil liberties without increasing our security”.

While the law was passed as an anti-terrorism measure, it is not limited to terrorism. For example, government spying on suspected computer trespassers requires no court order.

Wiretaps are now allowed for any suspected violation of the Computer Fraud and Abuse Act, potentially opening the way to government spying on any computer user.

The Patriot Act also gave Internet Service Providers authority to release certain private data if a person’s life is in danger. The Justice Department does not have statistics on the number of times it has accessed such information, according to its report to the congressional committee.

However, it does describe how this tool enabled investigators to track down a student who posted threats to bomb his high school on an electronic bulletin board. Last April, the ACLU challenged this section of the law on behalf of an unnamed Internet company as an “undue restriction on free speech and privacy rights”. A federal judge ruled the section unconstitutional and barred the FBI from invoking that part of the law in the future. — IPS