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 More Spy Powers For The FBI? Bad Move
Now The Feds Are Demanding
That The FCC Grant Full Access To Tap All Sorts Of Net Communications. It Simply
Isn't Necessary
March 18, 2004
By Jane Black
On
Mar. 12, the Justice Dept., FBI, and Drug Enforcement Administration delivered
an 83-page
petition to the Federal Communications
Commission demanding dramatic new surveillance powers. If they're approved, the
FBI would have the right to require Internet service providers (ISPs), voice
over Internet protocol (VoIP) companies, and others that rely on broadband
access to the Net to redesign their networks to support standards designed by
law enforcement for wiretapping and tracing.
The FBI already can require
phone companies to do this under the 1994 Communications Assistance for Law
Enforcement Act, better known as CALEA (see BW Online, 2/27/03, "These Are Not
Your Father's Wiretaps"). And to some, the expansion of these powers to the Net
seems reasonable. After all, CALEA's goal is to help law enforcement keep pace
with changes in telecommunications technology, and never before in that
industry's history has there been such rapid, tumultuous change. Today, calls
are made over the Internet and via peer-to-peer networks such as Skype, and
people often communicate more through e-mail and instant messaging than they do
face-to-face (see BW Online, 1/6/04, "Skype: Telephony as File Trading".
The FBI warns that unless it has some influence over these new
technologies, it'll be unable to keep up with terrorists and thieves. "The
ability of federal, state, and local law enforcement to carry out critical
electronic surveillance is being compromised today," the petition warns, adding
that the task of protecting the public is growing more difficult every day.
The FBI has asked the FCC to solicit comments on its proposal by Apr. 12
-- a lightening pace for the federal agency where matters of this kind normally
take months, if not years, to be decided.
Fourth Amendment Debate
Political pressure to cave in to FBI demands is sure to be intense. But
the FCC should think carefully before O.K.'ing this proposal. That's because
what might appear a straightforward extension of a 10-year-old law is actually a
land grab for new surveillance powers. Under CALEA, surveillance is no longer a
"method of last resort" -- the phrase Congress used when authorizing wiretapping
in 1968. Instead, it's a primary goal.
The FBI's latest request would
extend the use of surveillance well beyond Internet phone companies. Legal
experts warn that the ruling would apply to all ISPs, instant messaging
services, even the likes of Sony and Microsoft, which make Internet-ready
video-game consoles for multiplayer gaming.
"The heart of this debate is
about the Fourth Amendment in the 21st century," says Marc Rotenburg, executive
director of the Electronic Privacy Information Center in Washington, D.C. "Do we
tell law enforcement that they can architect and oversee the development of
communications technology, or do we maintain that they only should have access
to information with reasonable cause and permission from a judge?"
Ready To Cooperate
Privacy advocates know how they would
answer. But let's consider the FBI's case. In its petition, the agency claims
that "communications among surveillance targets are being lost and associated
call-identifying information is not being provided in a timely manner" thanks to
"providers who have failed to implement CALEA-compliant intercept capabilities."
O.K., where's the proof? Anecdotal information and plenty of press
reports in the wake of September 11 reveal that corporations are willing --
often very willing -- to hand over any data requested by federal law enforcers.
Cable companies such as Time Warner and Cox have voluntarily developed their own
wiretapping capabilities, often in concert with the FBI.
And leading
consumer VoIP provider Vonage says it has been cooperating with law enforcement
for the past 18 months, handing over call records, logs, and billing information
when material is subpoenaed. It's true that Vonage doesn't yet have the ability
to tap its lines. But to date, it has never been required by law to intercept
calls, according to company spokesperson Brooke Schultz. Vonage engineers are
now developing a standard to meet the FBI's needs.
Bottleneck
Checkpoints
Moreover, since when has tracking information on the
Internet become so difficult? Internet technologies use standard protocols. And
though each call or e-mail is chopped up into hundreds or thousands of pieces
and sent over various routes, each packet hits one of several Internet
bottlenecks.
"There are very few aspects of Net technology that can't
yield up their secrets," says Stewart Baker, a Washington (D.C.) attorney who
represents several large broadband providers and Internet portals. "Law
enforcement may never have the convenience that it had when it was dealing with
one telephone company in the U.S. But voluntary cooperation [as opposed to
federal mandates] will make it difficult for criminals to operate using common
Internet services."
I don't usually buy arguments for self-regulation,
but Baker has a point. Even peer-to-peer phone service Skype, which
automatically encrypts every call, is likely to cooperate with the feds when
presented with a subpoena. Hosting terrorists, drug dealers, or other criminals
on the network is bad business.
Sham Scenario?
Finally,
it's not clear why the FBI needs new regulations to expand its power in the
first place. It has long used a snooping technology called Carnivore to monitor
the flow of communications across ISP networks. Since September 11, the Justice
Dept. has won dramatic increases in legal authority thanks to the Patriot Act,
including the right to use special subpoenas that don't require a judge to sign
off under the Foreign Intelligence Surveillance Act.
In 2002, the FISA
Court approved all 1,228 applications it received for wiretaps, up from 934
applications in 2001. The Justice Dept.'s budget also has skyrocketed. In 2003,
it was $30.1 billion, up 22% from $24.5 billion in 2001 -- an indication that
the FBI should be experiencing no shortage of resources.
In short, the
FBI's claim that it lacks the authority or means to track criminal communication
over new technologies seems at best disingenuous, at worst a sham. The FCC
should reject the FBI's proposal -- or at least demand more proof that it needs
such sweeping new powers. Law enforcement does require the ability to monitor
Internet communications if and when there's suspicious activity. But it can do
that without the power to approve or redesign Internet technology so that its
primary feature is surveillance.
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