The government has interpreted a high-profile provision of the Patriot Act as empowering F.B.I. national security investigators to collect logs showing who has visited particular web pages, documents show. But the government stops short of using that law to collect the keywords people submit to internet search engines because it considers such terms to be content that requires a warrant to gather, according to letters produced by the Office of the Director of National Intelligence. The disclosures come at a time when Congress is struggling with new proposals to limit the law, known as Section 215 of the Patriot Act. The debate ran aground in the spring amid erratic messages from President Trump, but is expected to resume after President-elect Joseph R. Biden Jr. takes the oath of office in January.
In May, 59 senators voted to bar the use of Section 215 to collect internet search terms or web browsing activity, but negotiations broke down in the House. During that period, Senator Ron Wyden, Democrat of Oregon and one of the sponsors of the proposal ban, wrote to the director of national intelligence seeking clarity about any such use. Six months later, the Trump administration finally replied — initially, it turned out, in a misleading way. In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records. Mr. Wyden’s office provided that letter to The New York Times, arguing that it meant Mr. Wyden’s proposal in May — which he sponsored with Senator Steve Daines, Republican of Montana — could be enacted into law without any operational costs.
But The Times pressed Mr. Ratcliffe’s office and the F.B.I. to clarify whether it was defining “web browsing” activity to encompass logging all visitors to a particular website, in addition to a particular person’s browsing among different sites. The next day, the Justice Department sent a clarification to Mr. Ratcliffe’s office, according to a follow-up letter he sent to Mr. Wyden on Nov. 25. In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.” Mr. Ratcliffe expressed regret “that this additional information was not included in my earlier letter” to the senator, and suggested his staff might take further “corrective action.” In a statement, Mr. Wyden said the letters raise “all kinds of new questions, including whether, in this particular case, the government has taken steps to avoid collecting Americans’ web browsing information.” “More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”