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Into the vast pond of government and corporate acquisition of information about consumers through online software and other programs, the judges on the 3rd U.S. Circuit Court of Appeals have tossed a boulder.

The court ruled that accessing and reading Web browsing histories – which are critical for targeted advertising and some government investigative techniques – could violate the Wiretap Act.

Andy Greenberg at Wired explained that the appeals court affirmed a lower court’s dismissal of claims that Google violated laws such as the Wiretap Act and others by collecting Web browsing information through software “cookies.”

“But … more importantly, the court was careful to make another point: That merely tracking the URLs someone visits can constitute collecting the contents of their communication, and that doing so without a warrant can violate the Wiretap Act,” he wrote.

Greenberg explained the ruling applies not just to Google “but to the Justice Department.”

Jonathan Mayer, an expert in computer science and law at Stanford, told Wired it’s “a pretty big deal for law enforcement.”

“The punchline is that if the FBI or any law enforcement agency wants to look at your Web history, they’ll have to get a warrant for a wiretap order.”

Obtaining the order would require convincing a judge there is “probable cause.”

“Police State USA: How Orwell’s Nightmare Is Becoming Our Reality” chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

The case was brought by a number of individuals against Google and others for allegedly circumventing cookie-blocking software to read a computer user’s browsing history and hit them with advertising related to their search habits.

Frequent searches for computer-related products, for example, puts ads from companies such as HP, Dell and Microsoft in front of the Web user.

The district court dismissed the complaints, and on appeal the 3rd Circuit affirmed most of the claims, with the exception of one based on the California Constitution.

Google argued that metadata, such as the addresses of Web pages visited, is not subject to requirements for warrants.

But the appeals court said the information can, in some circumstances, be considered message content.

“In essence, addresses, phone numbers and URLs may be dialing, routing, addressing or signaling information, but only when they are performing such a function. If an address, phone number or URL is instead part of the substantive information conveyed to the recipient, then by definition it is ‘content,'” the judges wrote.

And that means some type of judicial evaluation and order would be needed for outsiders to access the information.

“In a declassified opinion analyzing whether there was statutory authority for a National Security Agency surveillance program, the Foreign Intelligence Surveillance Court observed that the government possessed trap and trace authority over ‘dialing, routing, addressing and signaling information … provided, however, that such information shall not include the contents of any information,'” the ruling said.

Critics note that a generic Web address such as hospital.com reveals no personal information. But an address such as hospital.com/alcoholismcenter could.

“The Surveillance Court concluded that routing information and ‘content’ are not mutually exclusive categories, but rather ones that Congress expressly contemplated to be occasionally coextensive,” the ruling said.

The opinion continued: “The Surveillance Court explained that, if a user runs a search using an [i]nternet search engine, the search phrase would appear in the URL after the first forward slash as part of the addressing information, but would also reveal contents, i.e., the ‘substance’ and ‘meaning’ of the communication … that the user is conducting a search for information on a particular topic.”

That was exactly the argument raised by two of America’s influential civil-rights groups, the American Civil Liberties Union and the Electronic Frontier Foundation, in another case over government access to “metadata.”

That case challenged the National Security Agency’s collection of information about the telephone calls of private citizens. The data the NSA collects, a court brief argued, “reveals political affiliation, religious practices and peoples’ most intimate associations.”

“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood,” the brief said.

The brief said “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”

The case brought by Larry Klayman of Freedom Watch is pending right now on the issue of an injunction from U.S. District Judge Richard Leon ordering a halt – at least with regard to certain phone numbers.

Greenberg noted that there’s long been freedom for the government to look at communications data apart from the content.

But the opinion explained that the URLs that a Web user visits reveal details of the content of a communication.

The court panel said Google and its co-defendants weren’t in violation of the Wiretap Act because software on the consumer’s computer issued a call for the targeted ad.

But, Wired said “the judges took special pains to make clear that the defendants hadn’t been let off because their cookie-blocking circumvention technique was only collecting metadata from users, rather than the content of their communications. The URLs that a web user visits, the court explained, can in fact qualify as content and thus require a warrant to surveil.”

“Police State USA: How Orwell’s Nightmare Is Becoming Our Reality” chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

 

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