Thursday's surveillance state hullabaloo turned out to be a bust. But now that we’ve all calmed down a bit about the supposed risks of searching for pressure cookers, it’s worth looking at when law enforcement can actually see what you’ve been Googling -- and perhaps more importantly, when they cannot.
Considering all the recent revelations about the NSA’s surveillance program, it’s easy to assume (as many did Thursday) that warrantless snooping by law-enforcement agencies is a regular occurrence. But that is, thankfully, not the case. Your local police simply don’t have the technological capacity to sift through the incredible volume of data that entails. (Or, as a Nassau County Police detective told Gawker, “This is kind of interesting. Is it even possible to do that?”) Second, there are constitutional protections that, at least in theory, prevent the feds from snooping through your search results.
We asked Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, to lay out exactly when and how state and federal law enforcement can obtain a record of your Google searches. The good news? The law says they always need probable cause:
1. They could ask Google for your search data. This is something most people know about already, and something that Google has begun declaring openly in an annual Transparency Report. Essentially, police and other investigators can ask a judge for a search warrant, which they then present to Google. Google received 8,438 such requests in the second half of last year and honored 88 percent of them. A government agency can also subpoena data from Google, which doesn’t require a judge’s approval -- but they can’t subpoena the actual content of your searches or emails.
2. They could monitor your Internet connection in real time. Like wiretaps on landlines and cellphones, this requires what Fakhoury calls a “super warrant” -- not only a probable cause finding by a judge, but proof that less intrusive means have been tried already and other requirements. A wiretap will obviously surface everything you do online, not merely your searches.
3. They could analyze your physical computer. If you’ve ever seen an episode of "Law and Order," you’re already well-versed on the budding field of digital forensics. Fakhoury says searches could be reconstructed through data stored on your computer, such as browsing history and cached Web sites. This, again, requires a warrant, or proof that an exception to the warrant requirement applies -- which is rarely the case. Such exceptions include your consent and the fear of immediate risk to police officers.
All this goes to show that your local police will never be able to spy on your searches unless you’ve done something to convince a judge that you’re up to no good.
Now the bad news: the NSA operates according to its own rules, and slides published by The Guardian on Wednesday suggest that the agency collects data on “nearly everything a typical user does on the internet” and makes that data available to analysts without judicial review. And while the NSA's surveillance programs are supposed to "target" foreigners, the NSA sometimes sweeps up Americans' communications, too. Leaked procedures for filtering this information, known as "minimization," suggest that the NSA may retain information and pass it along to the FBI if it is evidence of a crime.
If that bothers you, you can take some steps to protect your data. Searching on Google’s encrypted site will protect your data from both NSA and wiretap surveillance, for a start. There are also plenty of privacy-loving alternatives to Google, such as Startpage, which anonymizes your information before querying Google, and DuckDuckGo, which grew by 50 percent the day the NSA story broke.
So go ahead, search “pressure cooker.” Just don’t do it at work.