The growing closeness between public sector authorities and private sector technology firms has been cause for concern among data privacy advocates in recent months, and a new proposal from the FBI may only exacerbate these fears. In a development first reported by CNET correspondent Declan McCullagh, the FBI is asking online communication companies – including Microsoft, Facebook and Google – for their cooperation in an initiative that would see the extension of government surveillance capabilities across the digital frontier.
Legislating effective law enforcement
While any discussion of government wiretapping is sure to attract its share of opposition from civil liberties advocates and concerned citizens, this particular debate would not be complete without an investigation of its historical context. The story really begins back in 1994 with the passage of the Communications Assistance for Law Enforcement Act (CALEA).
The legislation essentially required telecommunications carriers and equipment manufacturers to modify the design of both their hardware and protocols to facilitate electronic surveillance activities conducted by law enforcement and intelligence agencies. With the requisite capabilities built in to the communication networks, authorities could monitor suspected illegal activities in real time. Originally applied solely to telephone companies, the legislation was later extended in 2004 to cover broadband networks to keep pace with modern communication trends.
According to CNET, the 2004 amendment was in response to what government officials refer to as the “going dark” problem. As technology evolved away from telephone networks, authorities realized that broadband networks could become a safe harbor for illicit communications if the government was not able to expand its visibility into the new frontier.
Communication technologies have evolved once again in the interim as both consumers and business professionals begin to embrace voice over Internet protocol (VoIP), instant messaging and social networking. As a result, authorities fear that their jurisdiction may go dark once again.
“A growing gap exists between the statutory authority of law enforcement to intercept electronic communications pursuant to court order and our practical ability to intercept those communications,” one FBI official told CNET. “The FBI believes that if this gap continues to grow, there is a very real risk of the government ‘going dark,’ resulting in an increased risk to national security and public safety.”
Building a backdoor for authorities
To address those concerns, the FBI is requesting the same assistance from leading web companies that they asked of telecommunication companies back in 1994 and again in 2004. According to CNET, the FBI general counsel’s office is quietly drafting a proposal that would requiring social networking sites, VoIP providers, instant messaging services and email hosts to alter their proprietary coding to make products that are more “wiretap-friendly.” The short list of utilities that could be affected by this proposal include Microsoft’s Skype, Hotmail and Xbox Live; Google’s Gmail, GChat and Google+; Apple’s iChat and FaceTime; Facebook and Twitter.
It remains to be seen if or how private service providers will be compensated or rewarded for constructing these “backdoors” for authorities to streamline surveillance efforts. But according to CNET, there is also the possibility the companies could be granted “safe harbor” for coding structures deemed “good enough” or for alternatively supplying authorities with enough information to decode proprietary systems.
Ensuring security or invading privacy?
It didn’t take long for critics to express concern with a proposal that some interpret as the promotion of “police state” ideals. In a related article for Salon Magazine, columnist Glen Greenwald drew parallels between the FBI’s expressed ambitions and the tactics recently deployed by authoritarian leaders in Saudi Arabia and the United Arab Emirates which ultimately led to nationwide bans of BlackBerry devices.
Greenwald suggested that government officials have been afforded plenty of new surveillance capabilities post-9/11 and have many roads available to monitor individuals whom they deem suspicious. In fact, only one instance of encrypted communications inhibiting wiretap procedures was recorded in 2009.
At the other end of the spectrum, some contend that the focus should be directed back to legislation itself, as opposed to the new technology it is being applied to. According to Slate Magazine, there are very real reasons to believe that authorities have been unable to apply the guiding principles of CALEA and ensure national security in recent years. Critics also seem to be overlooking the fact that any wiretap requests still have to be filtered through the same channels and require an official court order before being authorized.
Regardless of when or how this proposal comes to fruition, perception will be just as important as reality. According to Slate, a spike in government surveillance fears could spawn a greater interest in anonymizing tools such as Tor that would drive illegal activities further underground and exacerbate the “going dark” problem. Additionally, an extension of U.S. government regulation could drive away legitimate business from international companies – a phenomenon observed following the passage of the Patriot Act and even some recent cloud security standardization efforts.
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