FBI: We Need Wiretap-Ready Web Sites Now

Stan Ward

Stan Ward

May 12, 2014

Going dark. That is the phrase which is the driving force behind FBI efforts to wrest more compliance out of the technology industry.  Current laws on the books apparently give law enforcement some specific means to fight crime. However, technological advances may be outpacing the ability of agencies such as the FBI to keep up. The Justice Department fears that the gap may grow to a point where standard eavesdropping procedures have no effectiveness. Law enforcement calls this situation in which normal surveillance tools become obsolete “going dark.”  Thus, they are petitioning the tech companies to create communications systems which are wiretap friendly. This would greatly affect social networks, VoIP and Web email providers- perhaps negatively.

The FBI’s proposal would amend the 1994 law called the Communications Assistance for Law Enforcement (CALEA).  The law doesn’t cover Web companies, only telecommunication providers. An extension of that law seven some ten years later extended its application to include broadband networks. A further expansion of CALEA is not embraced by tech companies or the citizenry at large. Many are actively lobbying against this possibility. They fear the specter of overreach on the part of the government if it gets its way in forcing companies to develop wiretapping capabilities into its new technology.

In addition to the FBI’s legislative proposal, the FCC is contemplating measures which would alter the present CALEA language.  This move would demand that products which allow video or voice chat over the internet, e.g. Skype and Google Hangouts to include surveillance backdoors to aid the FBI in its efforts to avoid “going dark.” To accomplish this, the FCC may initiate regulatory action. The FBI’s general-counsel, Valerie Caproni has warned Congress of the Going Dark problem.  Fearing that technological advances may one day outstrip surveillance capabilities, she worries that it would leave the agency “increasingly unable” to conduct effective wiretapping operations as it had in the past.

For its part, the FBI is said to be sensitive to the potential costs of their requests on the tech companies. They say they only want to be sure that the interception techniques can pass muster with the Attorney General. A less costly alternative for the industry is suggested by Steve Bock, president of the Colorado based company, Subsentio. He offered a “safe harbor” proposal that the tech companies could embrace.

In such a scenario they would “supply the government with proprietary information to decode information” acquired from wiretaps or other means of lawful interception.  This would obviate the need to “provide a complex system for converting the information into an industry standard format.” Industry cooperation is crucial as the government reiterates the point that regulatory authority and legislative mandates are insufficient alone to address the problem. For technology, often in response to regulation, develops more advanced  countermeasures.  This apparently has had them worried as far back as 2006.

The tech industry is empathetic if not enthusiastic about these proposals. Even the White House is not too enthused about the prospects of a potentially bruising privacy battle. With the midterm congressional elections looming, there is no great appetite to give the opposition more ammunition to use against it. The incumbents are still bristling over the Obamacare debacles. Therefore, no CALEA amendments have been sent to Congress. Without the endorsement of the Administration the FBI initiatives are dead in the water.

The FBI is perplexed.  It doesn’t consider expanding CALEA to cover VoIP, Web email and social networks an expansion of wiretapping law. It merely wants to see results for its wiretapping efforts. From their perspective little, if anything, is changed. Warrants where needed will still be applied for and have to be obtained for the surveillance. Moreover, unless a company reaches certain criteria it would not even have to comply. Some hobbyists and start-ups could be exempt it is believed. But many in the tech industry remain skeptical, what with memories of the SOPA battle of last year fresh in their minds as well as the CISPA data-sharing bill.

Jennifer Lynch, an attorney at the San Francisco based Electronic Frontier Foundation said, “I worry about the government mandating backdoors into these kinds of communications. For example, in 2004 after strong FBI pressure, the FCC approved language designed to make broadband companies provide more efficient standardized surveillance capacity. Shortly thereafter it was extended to include internet phone companies that tie into the existing telecommunications system.

What’s in store now?  Will instant messaging and VoIP programs that are not managed (read peer to peer programs) be affected? This includes programs such as Apple’s Facetime, iChat/AIM, Gmail’s video chat and Xbox Live’s in game chat. None presently use the public telephone network. Where will they fit in? Valid questions all.

The solution may lay, as it so often does in politics, in compromise. The industry wants protections against disclosure of any trade secrets or other confidential information. But it is certain that they are not just going to submit without a fight. They have armies of lobbyists to employ as the prospect of complying with law enforcement requests is bound to be costly. But what about the non-financial costs of compliance? What about the notion of government interference in free enterprise. Enterprise can’t be shackled by heavy-handed attempts to stifle innovation.

Privacy itself is at issue. There’s more than just monetary exposure here. Election season is upon us. Maybe it’s time we let our feelings be known at the ballot box. That will surely get the attention of the powers that be..

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