The federal government created visitor logs for some websites in 2019, the office of the director of the National Intelligence Service announced in letters released this week. And the government cited the authority derived from a provision in the Patriot Act to do so.
National Intelligence Director John Ratcliffe confirmed these actions in a November 6 letter to Senator Ron Wyden (D-Ore.) That was part of an exchange (PDF) first received and published by the New York Times .
The exchange begins with a May 20 letter from Wyden to the ODNI asking then-director Richard Grenell if and how the federal government uses Section 215 of the Patriot Act to provide IP addresses and other internet surfing information receive. At the time, the Senate had just passed a bill that re-approved the bill. Wyden was among Senate privacy advocates pushing for changes to the law to prevent the FBI from using Section 215 to preserve users' search and browsing histories, but its move was unsuccessful.
Ratcliffe's response to Wyden, six months later, said the FBI had not used the authority of Section 215 to harvest internet search terms, adding that of the 61 orders placed in 2019 (before the law expired in March this Year) were granted, none involved "the creation of information relating to surfing the Internet or searching the Internet."
However, on November 25, Ratcliffe sent another letter to Wyden to "change" his previous response. It turned out that one of those 61 commands actually resulted in the FBI gaining access to "information that could be characterized as" web browsing "information." In particular, federal investigators collected log entries for "a single identified US website" "ads from IP addresses accessed from" a certain foreign country. "The document does not identify the site or country.
The amended letter "raises all sorts of new questions, including whether the government has taken steps in this particular case to avoid gathering information about surfing the Internet from Americans," Wyden said in a statement. The Senator added, "The DNI made no guarantees that the government would no longer use the Patriot Act to purposely gather information about Americans surfing the Internet." He urged Congress to pass an amendment that it proposed earlier this year.
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What now?
The Patriot Act, including Section 215, was first passed in October 2001 after the 9/11 attacks. Section 215 allows the FBI to be mandated by a secret court called FISA – the Foreign Intelligence Surveillance Court – to collect any records it deems relevant to a national security investigation. This particular piece of legislation became apparent after Edward Snowden made his infamous leaks back in 2013. In 2014, the list of Section 215 records included not only phone and internet data, but also some library records, tax returns, some medical records, financial information, credit card purchases, and a whole host of other data points.
The broad authority granted to federal investigators under Section has remained controversial in the years since they became public. However, § 215 expired in March and has not yet been renewed.
The Senate passed its version of a re-approval bill on May 14. Wyden and Senator Steve Daines (R-MT) initially tabled a non-partisan amendment that would limit the government's ability to search the US searches and search histories without guarantee. Their measure received 59 votes, but in the non-partisan, dysfunctional modern age, which did not bring them over the threshold of 60 votes required to avoid filibuster, the amendment failed. The bill passed by the Senate (80-16) did not contain this data protection provision.
We have a bicameral legislature, and so by May 26th, the House was making progress on drafting legislation, with the strong support of Rep. Zoe Lofgren, D-Calif. And Rep. Warren Davidson, R-Ohio add a privacy change in line with the one that did not make it into the final Senate bill. On May 27, however, President Donald Trump threw the entire process into chaos when he abruptly asked Republicans not to support re-authorization at all.
That was more or less the end of the matter for the entire Congress. It remains unclear to what extent the upcoming administration of President-elect Joe Biden will pursue the matter, especially since the composition of the party in the new Senate will not be known until after the January 5 run-off in Georgia.
