So that's the Not Good News, what's the Good News?
The Good News is that in the same decision that let Google off the hook, the Court was careful to make another point: Courts have pretty consistently ruled that the government does not need a warrant to spy on and collect so-called "non-content" data, or the metadata, of our communications - they can record, for example, who made a phone call, who got a phone call, who sent an email, who got an email; but not the content of what was said or written.
But in its decision, the Third Circuit said that merely tracking the URLs someone visits can constitute collecting the contents of their communications, and that doing so without a warrant can violate the Wiretap Act.
As an example of how the would happen, Julian Sanchez of the Cato Institute says that a visit to "webmd.com" might count as metadata, but a visit to "www.webmd.com/family-pregnancy" clearly reveals something about the visitor's communications beyond the simple fact of the visit itself, and that amounts to recording content, which requires a warrant.
And the real point here is that this declaration in the court's ruling, this finding that what's supposedly metadata can actually be content, the principle is across the board - meaning it will apply not just to Google, but to the Justice Department and the NSA and the rest of the spook-ocracy.
This is not completely new territory; the Department of Justice already states that it seeks a warrant when it collects URLs from a suspect's web history and the judges in the Google case cited a formerly secret Foreign Intelligence Surveillance Court ruling that also found that URLs could count as content as well as metadata.
But the DOJ's policy is just that: policy, not a legal requirement. And the FISA ruling was secret. This is public. Both of those differences matter.
But what matters right now is that while it may just be because that impending date of November 29 makes it seem politically safe, the decision in the Google case is one among some others that hint at an increasing willingness of the courts to challenge the spooks on their authority.
For one example, last May the Second Circuit Court of Appeals found that the Patriot Act did not authorize the metadata collection program. The Court did not rule on its constitutionality, but it did find the program to be illegal.
More importantly, on November 9, US District Judge Richard Leon of the District of Columbia ruled that the NSA's entire metadata-collecting program is unconstitutional and ordered it stopped immediately, finding that the Constitutional violation involved was so egregious that even though it was supposedly going to end in a few weeks anyway it could not be allowed to stand another day.
In a related matter, since it involves government spying on citizens, the att gen of OR, Ellen Rosenblum, has said she is "appalled" by the discovery that the state's Criminal Justice Division, which she supervises, had been tracking the Twitter feeds of a number of OR residents based solely on their use of certain hashtags, particularly that of #BlackLivesMatter.
Wile she gave no details on the scope of the digital surveillance, she did say she is investigating it and strongly suggested the practice was to stop. Which, again, is good news.
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