FEDERAL COURTS HAVE long given the government leeway to surveil and collect so-called “non-content” data—records of the senders and recipients of calls and emails, for instance, rather than contents of those communications. But an unlikely case involving Google may mean the government will be required to get a warrant before it sucks up one type of that metadata: the detailed history of an individual’s web browsing.
On Tuesday the third circuit court of appeals issued a ruling in a long-running class action lawsuit against Google and two media firms, who are all accused of circumventing cookie-blocking technologies in browsers to track users’ web histories. In the ruling, the appeals court agreed with a lower court, which dismissed the plaintiffs’ claims that Google and the other defendants had violated laws like the Wiretap Act, the Stored Communications Act, and the Computer Fraud and Abuse Act by collecting users’ web browsing information. (Though the ruling does reverse the dismissal of a different claim that the defendants violated the California constitution, which will now proceed in the lawsuit.) But despite those decisions and perhaps more importantly, the court was careful to make another point: 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. And that’s an opinion that will apply not just to Google, but to the Justice Department.