Federal courts have long given the government great leeway to collect digital data, including in-box and outbox recipients, call data records and other “non-content” meta data. However, a case involving tech giant Google may force the government to get a warrant before it can access one other specific type of meta-data — the Search and Browsing data of users.
On Tuesday, November 10th, the third circuit court of appeals issued a ruling in a class action suit against Google, a case in which the monolithic company was accused of circumventing cookie-blocking technologies in order to track user web histories. The court dismissed the plaintiffs claims that Google had violated the Wiretap act, and other laws, such as the Stored Communications act and the Computer Fraud and abuse act. However, the court was careful to state that the tracking of URLs without a warrant may violate the Wiretap act. This ruling would presumably not only apply to Google and other third-party vendors, but to the Justice Department as well.
While collecting information such as call information, sender and recipient lists may not qualify as “data,” the court expressed concern that a users browsing history may in fact constitute data, and thus require a search warrant. This ruling will require law enforcement to obtain a warrant for wiretap orders to legally look at a user’s web history, setting a higher legal standard of than simply collecting a user’s meta-data.
“This is a pretty big deal for law enforcement,” said Jonathan Mayer, a Stanford fellow in computer science and law whose research into Google’s circumvention of cookie-blocking technology helped to spark the class action suit as well as the search giant’s $17 million settlement with 37 states on the issue. “The punchline is that if the FBI or any law enforcement agency wants to to look at your web history, they’ll have to get a warrant for a wiretap order,” which requires proving a tougher standard of ‘probable cause’ to a judge than would be necessary for collecting mere meta-data.”
The URLs that a web user visits, the court explained, can in fact qualify as content and thus require a warrant to surveil. This ruling might be the first step in dismantling the notion that collecting “meta-data” is not a violation of other constitutional principles because the court’s ruling indicates that what might be considered “just data” can, in fact, become content, and law enforcement will need to proceed with due caution when accessing online information if it wants to be able to use it as evidence in the future.
You can read the entire ruling here:
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