“The problem is where we are today. The way we communicate is really not limited to telephone nowadays and sort of the old fashioned picking up the phone and calling someone,” Weismann said.
That would be
Andrew Weissman, general counsel of the FBI, talking last week at the National Press Club in Washington D.C. Despite the sophomoric nature of the apparent tech-challenged counsel's statement, the essence of what Weissman said portends a coming [significant] expansion of the FBI's power to intercept and monitor in real time "private" conversations on the internet... without a warrant.
From the RT Blog:
The Federal Bureau of Investigation doesn’t have the ability to monitor everyone’s one-on-one Internet chats in real-time just yet, but the agency’s chief lawyer says all that should soon change.
FBI general counsel Andrew Weissman discussed the Justice Department’s power to put pressure on cyber-criminals during an address last week at the National Press Club in Washington, and during the engagement he opened up about what exactly the country’s top domestic police patrol wants in their bag of tricks: By the years’ end, the attorney says the FBI hopes to be able to snoop on conversations that occur over the Web by gaining access to up-to-the-second feeds of seemingly secretive chats.
Up till now, law enforcement in the U.S. needed a court's approval to tap into real time telecommunications on the internet; thanks to the
Communications Assistance for Law Enforcement Act, or (CALEA), passed by Congress and implemented by the
FCC back in 1994.
This is what the Electronic Frontier Foundation (EFF) has to say about CALEA:
EFF and a coalition of public interest industry and academic groups filed suit in 2005 challenging the Federal Communications Commission's (FCC) unjustified expansion of the Communications Assistance for Law Enforcement Act (CALEA). By forcing broadband Internet and interconnected voice over Internet Protocol (VoIP) services to become wiretap-friendly the FCC ignored CALEA's plain language and threatened privacy security and innovation.
Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994 to make it easier for law enforcement to wiretap digital telephone networks. CALEA forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet.
Apparently, CALEA isn't enough anymore.
Weissman's [dire] warning to Congress:
... as technology advances, agencies like the FBI become increasingly out of luck in terms of tracking down criminals who’ve moved operations off the streets and onto the Web.
Weissman's right that legislative law does not yet exist to allow law enforcement agencies to tap into internet accounts in real time like it does for snooping in on phone calls without a warrant. At the present time, only archived internet communications can be legally accessed by the FBI through court orders from email services like Gmail and 'chat' services like Google Voice and DropBox. But Weissman says that's no longer enough.
The ability to actually intercept online chats is something the FBI wants to have, and Weissman said they are working on having it ready by the end of the year.
“You do have laws that say you need to keep things for a certain amount of time, but in the cyber realm you can have companies that keep things for five minutes,” he said. “You can imagine totally legitimate reasons for that, but you can also imagine how enticing that ability is for people who are up to no good because the evidence comes and it goes.”
Ok, from my reasonably-informed standpoint, Weissman is either being naive or disingenuous. Everyone knows that stuff on the internet never
really goes away. If someone really wants it, and that someone is endowed with the tech savvy of an average teenager, virtually every keystroke can be found if they dig far enough. I guess Weissman wants to eliminate the shovel work.
In any event, Weissman laments the fact that other countries already allow in-country law enforcement agencies to 'listen' in on real time conversations. In his words, with that option available internationally, tracking cyber-terrorists is as easy as eavesdropping on a typical phone call.
“We don’t have the ability to go to court and say we need a court order that actually requires the recipient of that order to effectuate the intercept. Other countries have that and I think most people who are not lawyers sort of assume that’s what you’re getting when you go to court,” he said. “You think that you’re getting an order that says, ‘Recipient, you have to actually effectuate the communication.’ Well that’s not what you get. You get something that says that you have to provide technical assistance.”
“The problem with not having [that ability in America] is that we’re making the ability to intercept communications with a court order increasingly obsolete,” Weissman added. “Those communications are being used for criminal conversations, by definition…and so this huge legal apparatus that many of you know about to prevent crimes, to prevent terrorist attacks is becoming increasingly hampered and increasingly marginalized the more we have technology that is not covered by CALEA. Because we don’t have the ability to just go to the court and say ‘You know what, they just have to do it.’”
FISA's such a quaint concept.
Weissman went on to say the ability to track internet communications in real time “is a huge priority for the FBI” for instances where waiting five minutes just won't do.
Weissman even hinted at being able to intercept messages sent over entirely different sites, such as a game of Scrabble conducted over Facebook.
According to Weissman, the FBI will try to iron out a deal with internet companies by year's end.
Incidentally, Google admitted last year that government requests for data multiplied by 25% in 2011. The U.S. already led the world in calls for data disclosure in 2011 and 2012, and is on pace to raise that rate even higher in 2013.
More from EFF:
It is crucial to remember that the issue here is not whether law enforcement can tap new technologies like VoIP but whether they can tap it easily. Existing laws already permit law enforcement to place Internet users under surveillance regardless of what programs or protocols they are using to communicate. Industry already cooperates with law enforcement to give it all the information requested and this will continue to happen with or without a new FCC rule interpreting CALEA.
Also keep in mind that this is not to aid in the apprehension of so-called "hackers." Apparently, it's to keep track of plotters of terrorist attacks inside the U.S. Or, whatever.
Slate also has an excellent article on this:
While it is true that CALEA can only be used to compel Internet and phone providers to build in surveillance capabilities into their networks, the feds do have some existing powers to request surveillance of other services. Authorities can use a “Title III” order under the “Wiretap Act” to ask email and online chat providers furnish the government with “technical assistance necessary to accomplish the interception.” However, the FBI claims this is not sufficient because mandating that providers help with “technical assistance” is not the same thing as forcing them to “effectuate” a wiretap. In 2011, then-FBI general counsel Valerie Caproni—Weissmann’s predecessor—stated that Title III orders did not provide the bureau with an "effective lever" to "encourage providers" to set up live surveillance quickly and efficiently. In other words, the FBI believes it doesn’t have enough power under current legislation to strong-arm companies into providing real-time wiretaps of communications.
Both the Slate and RT Blog articles are must-read in their entirety.
And please donate to EFF.
Happy chatting!