Arguing that their efforts are being thwarted by new technologies revolutionizing Internet communication, the FBI is calling for a push to expand its capabilities in intercepting online evidence. But some groups are saying that such actions have the potential to threaten online privacy, security and innovation.
Naming advances in "webmail, social networking sites or peer-to-peer services" FBI general counsel Valerie Caproni appeared before Congress to discuss the increasing difficulties the agency has had in corralling electronic communications for ongoing cases.
"In the ever-changing world of modern communications technologies, however, the FBI and other government agencies are facing a potentially widening gap between our legal authority to intercept electronic communications pursuant to court order and our practical ability to actually intercept those communications," she said. "We confront, with increasing frequency,
service providers who do not fully comply with court orders in a timely and efficient manner."
The challenges faced by authorities are both technical, and legal, according to Caproni, who named the issue "Going Dark," referring to the increasing space of Internet activity that cannot be monitored in the efficient manner the FBI seeks.
The technical landscape involved contains a myriad set of problems for law enforcement officials trying to get ahold of information. While some electronic communications providers already have in place ways to intercept messages, others must develop the technology once they receive the court order, slowing the process down.
"As the gap between authority and capability widens, the government is increasingly unable to collect valuable evidence in cases ranging from child exploitation and pornography to organized crime and drug trafficking to terrorism and espionage," Caproni said. "This gap poses a growing threat to public safety."
To illustrate, Caproni brought up a case in which the DEA was able to dismantle the drug trafficking arm of an organization, but was stymied by the lack of the provider's ability to intercept communication involving the arms trafficking wing of the group. "As a result, elements of this organization continue to traffic weapons today," she said.
The legal problem, Caproni says, is not so much about inadequate legal authority as it is about the practical issues law enforcement faces once it has received the right to collect data. Focusing on "the interception of electronic communications and related data in real or near-real time" presents new difficulties, Caproni noted.
While the Communications Assistance for Law Enforcement Act (CALEA) of 1994 mandates that communications providers have the capacity to intercept data, it does not cover webmail, social networking and P2P services.
"Since 1994, there has been a dramatic increase in the volume of communications, the types of services that are offered, and the number of service providers," Caproni said. "It is no longer the case that the technology involved in communications services is largely standard."
She also pointed out that the penalty for noncompliance is contempt, an action both difficult to pursue by legal means and carrying a low rate of success.
Reports late in 2010 that the FBI wanted to ensure that all services would be technologically capable of complying with a wiretap order were widely considered to be a move that could change the fundamental structures of the technologies involved. But Caproni emphasized that this new initiative would not focus on the technology itself, but to aid in the ease of legal process involved with obtaining electronic communications.
"Addressing the Going Dark problem does not require fundamental changes in encryption
technology," she said, allaying the fears of security experts who believed any requirement to build back-doors into encrypted softwares would not only pose a huge hassle for services required to remake their structures, but also present a risk that such back-doors would only make it easier for hackers to exploit the sites.
Though Caproni's remarks did not lay out a specific series of requests, the nature of her statement has already raised concerns in the web security community. As it stands, the call to improve the technological capability of the FBI to intercept communications does not entail what exactly might be required of communications providers.
Speaking of "the corresponding impact on trust in the confidentiality of Internet communications, security, innovation, competitiveness, availability of encryption, and privacy," Tech Freedom issued a statement expressing their worries about possible CALEA expansion.
CALEA, which originally held only over telecommunications services and not information services, specifically traditional telephone services. In 2004, they added the reach of CALEA to broadband Internet access services and "managed" Voice over Internet Protocol services (which applies to numbers already on the telephone network, as opposed to a service like Skype). This sort of push, Tech Freedom argues, is a different beast altogether:
In a sense, CALEA compliance built upon, rather than transformed or undermined, the technological model on which the carriers' networks were designed. This is very different, as I understand it, from the challenge CALEA compliance will present to peer-to-peer service providers that do not set up, take down or provide signaling for their customers' communications on signaling, routing and transmission networks controlled by the service providers. The extension of CALEA to these "edge" technologies might transform them fundamentally, reducing drastically their value to users and the openness and innovation they represent. Before they run that risk, Congress and the Administration should make sure they have exhausted all of the less restrictive alternatives.
The ACLU had an even stronger take.
"Though the administration claims this is just a technical fix, its request will actually change the structure of the Internet, providing the government with a master key to our online communications," said Laura W. Murphy, Director of the ACLU Washington Legislative Office. "The proposed changes will not only make it easier and cheaper for the government to invade our privacy, but also make the Internet more vulnerable to penetration from other sources."
The Electronic Freedom Foundation (EFF), which has closely monitored the government's actions regarding web surveillance, was able to obtain documents showing that the "Going Dark" initiative is a top priority for the FBI.
But EFF has also filed a Freedom of Information Act lawsuit as the government has stalled on the release of further documents regarding the plan--a hearing occurred today for the suit. Currently, the government will not release the documents to EFF until August 2012, two years after they filed their second FOIA request.
"Ironically, at the hearing today [the government said it] doesn't need to expedite the release because this isn't an issue of sufficient public concern," Kevin Bankston, a senior attorney at EFF, told the Huffington Post. "While at the same time, Congress is holding hearings on it."