years of internal debate, is on the
verge of backing an FBI plan for a
sweeping overhaul of surveillance laws
that would make it easier to wiretap
people who communicate using the
Internet rather than by traditional
phone services, according to officials
familiar with the deliberations.
FBI Director Robert Mueller has
argued that the bureau's ability to
carry out court-approved
eavesdropping on suspects is "going
dark" as communications technology
evolves.
Since 2010 he has pushed for a legal
mandate requiring companies like
Facebook and Google to build into their
instant-messaging and other such
systems a capacity to comply with
wiretap orders. That proposal,
however, bogged down inside the
administration amid concerns by other
agencies, like the Commerce
Department, about quashing Silicon
Valley innovation.
While the FBI's original proposal would
have required Internet
communications services to build in a
wiretapping capacity, the revised one,
which must now be reviewed by White
House officials, focuses on fining
companies that do not comply with a
wiretap order. The difference, officials
say, means startups with few users
would be freer to experiment without
worrying about wiretapping issues
unless they become popular enough to
come to the Justice Department's
attention.
Still, the plan is likely to set off a
debate over the future of the Internet
if the White House submits it to
Congress, according to lawyers for
technology companies and advocates
of Internet privacy and freedom.
"I think the FBI's proposal would
render Internet communications less
secure and more vulnerable to hackers
and identity thieves," said Gregory
Nojeim of the Center for Democracy
and Technology. "It would also mean
that innovators who want to avoid
new and expensive mandates will take
their innovations abroad and develop
them there, where there aren't the
same mandates."
Andrew Weissmann, the general
counsel of the FBI, said in a statement
that the proposal was aimed only at
preserving law enforcement officials'
long-standing ability to investigate
suspected criminals, spies, and
terrorists subject to a court's
permission.
"This doesn't create any new legal
surveillance authority," he said. "This
always requires a court order. None of
the 'going dark' solutions would do
anything except update the law given
means of modern communications."
A central element of the FBI's 2010
proposal was to expand the
Communications Assistance for Law
Enforcement Act - a 1994 law that
already requires phone and network
carriers to build interception
capabilities into their systems - so
that it would also cover Internet-
based services that allow people to
converse. However, the bureau has
now largely moved away from that
one-size-fits-all mandate.
Instead, the new proposal focuses on
strengthening wiretap orders issued by
judges. Currently such orders instruct
recipients to provide technical
assistance to law enforcement
agencies, leaving wiggle room for
firms to say they tried but couldn't
make the technology work. Under the
new proposal, providers could be
ordered to comply and judges could
impose fines if they do not.
The shift in thinking toward the judicial
fines was first reported by The
Washington Post, and additional
details were described to The New
York Times by several officials who
spoke on the condition of anonymity.
Under the proposal, officials said, for a
company to be eligible for the strictest
deadlines and fines - starting at
$25,000 a day - it must first have
been put on notice that it needed
surveillance capabilities, triggering a
30-day period to consult with the
government on any technical
problems.
Such notice could be the receipt of its
first wiretap order or a warning from
the attorney general that it might
receive a surveillance request in the
future, officials said, arguing that
most small startups would never
receive either.
Michael Sussman, a former Justice
Department lawyer who advises
communications providers, said that
aspect of the plan appeared to be
modeled on a British law, the
Regulation of Investigatory Powers
Act of 2000.
Foreign-based communications
services that do business in the United
States would be subject to the same
procedures, and would also be required
to have a point of contact on domestic
soil who could be served with a
wiretap order, officials said.
Albert Gidari Jr., who represents
technology companies on law
enforcement matters, criticized that
proposed procedure. He argued that if
the U.S. starts imposing fines on
foreign Internet firms, it would
encourage other countries, some of
which may be looking for political
dissidents, to penalize U.S. companies
if they refuse to turn over users'
information.
"We'll look a lot more like China than
America after this," Gidari said.
The expanded fines would also apply
to phone and network carriers, like
Verizon and AT&T, which are
separately subject to the 1994
wiretapping capacity law. The FBI has
argued that such companies
sometimes roll out upgrades to their
systems without making sure that
their existing wiretap capabilities will
keep working.
The 1994 law would continue to cover
phone and network companies, and it
would be expanded to cover peer-to-
peer Voice over Internet Protocol, or
VoIP, calls between computers that do
not connect to the regular phone
network. Such services typically do not
route data packets through any central
hub, making them difficult to
intercept.
The FBI has abandoned a component
of its original proposal that would have
required companies that facilitate the
encryption of users' messages to
always have a key to unscramble
them if presented with a court order.
Critics had charged that such a law
would create back doors for hackers.
The current proposal would allow
services that fully encrypt messages
between users to keep operating,
officials said.
In the fall of 2010, Mueller toured
several Silicon Valley firms to brief
them on the proposal as it then
existed and urged them not to lobby
against it, but the firms have adopted
a cautious stance. And in February
2011, the FBI's top lawyer at the time
testified about the broad strokes of
the idea at a House Judiciary
Committee hearing, emphasizing that
there was no administration proposal
yet.
Still, several top lawmakers at the
hearing expressed skepticism, raising
fears about innovation and security.
© 2013, The New York Times News
Service
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