New wiretapping mandates could harm privacy, innovation and security

Not satisfied with this windfall, the Federal Bureau of Investigation wants statutory authority to control Internet technologies to make them even more intrusive and easier to intercept.  According to the New York Times http://www.nytimes.com/2010/09/27/us/27wiretap.html, the FBI wants to be able to force innovators to design their communications applications to be wiretap-friendly.  The proposal has not yet been made public and is still under discussion among federal agencies, so it is not clear who or what would be covered or what changes the FBI desires.  Among other companies, the FBI has mentioned Skype, which provides encrypted VOIP (voice over Internet Protocol) services, and RIM, which makes the popular BlackBerry.  Taking the FBI claims at face value, they would be compelled to design their services to ensure government access to unscrambled communications.

If enacted in law, the FBI plan would likely expand electronic surveillance that is already at record levels.  In 2009, 2,376 federal and state wiretaps were placed for criminal purposes – more than in any prior year.  (And that’s not counting the 1,320 intelligence intercepts in 2009.)  On average in 2009, 3,763 communications were intercepted in every criminal wiretap, yet 82 precent of monitored calls were non-incriminating, according to the government’s own data.  At the same time, the legal restraints on surveillance have been steadily relaxed – especially since the September 11 attacks.  Examples include the 2001 PATRIOT Act, the 2008 FISA Amendments Act, and the steady addition of relatively minor crimes to the list of offenses for which wiretapping is permitted.  If the legal standards are weak and the technology of wiretapping is friction-free, where are the limits on government power?

The government already has control over the facilities connecting people to the Internet.  In 1994, Congress adopted the Communications Assistance for Law Enforcement Act (CALEA) requiring traditional telephone companies and cellular providers to design their switching equipment to a government-approved standard to facilitate wiretapping. In 2005, those requirements were extended to all providers of broadband Internet access.  The latest proposal, however, focuses on the most dynamic parts of the Internet: the diverse services and applications that ride on top of the Internet.  That is where the greatest innovation and economic development are occurring.  It could seriously stifle innovation – in an area where the U.S. has been a global leader – to require government pre-clearance for the innovator making the next great communications application in his garage or dorm room.  Some current applications would have to change so drastically that they would become unrecognizable to current users.  Others might be outlawed altogether.

Under the law of unintended consequences, the FBI proposal might actually harm security.  In essence, the FBI is asking that applications have a built in back door to facilitate government wiretapping.  However, such back doors can also be exploited by hackers and identity thieves. This will exacerbate the cybersecurity challenges we already face.  At a time when concerns about cybersecurity are rising sharply, more back doors means less secure networks.

Finally, what the FBI has proposed threatens to undercut what the Obama Administration has been doing to restore America’s moral leadership in the world. Countries with poor human rights records and little privacy protection are seeking to limit Internet technology to control the democratic yearnings of their people.  The U.S. government has properly criticized these governments, calling for a commitment to Internet freedom.  If the FBI can insist that service providers in the U.S. build in back doors to their technology, or position servers or other facilities in the U.S. to accommodate wiretapping, how can we possibly object (and how can U.S. and foreign service providers possibly resist) when every other country in the world demands the same?   

The FBI proposal faces an uncertain path.  Legislators of both parties already concerned with the size and intrusiveness of government should insist that the FBI fully document not only the problem but also how they expect their solution to work without opening new security vulnerabilities or forcing the redesign of some widespread and valuable services. And those who want the government to facilitate rather than impede job creation among small businesses should not overlook the uncertainty that these proposed mandates would create and the drag they would put on innovation and on the development of new services.

Gregory T. Nojeim is the senior counsel for the Center for Democracy & Technology