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More Spy Powers for the FBI? Bad Move

By Jane Black On Mar. 12, the Justice Dept., FBI, and Drug Enforcement Administration delivered an 83-page petition to the Federal Communications Commission demanding dramatic new surveillance powers. If they're approved, the FBI would have the right to require Internet service providers (ISPs), voice over Internet protocol (VoIP) companies, and others that rely on broadband access to the Net to redesign their networks to support standards designed by law enforcement for wiretapping and tracing.

The FBI already can require phone companies to do this under the 1994 Communications Assistance for Law Enforcement Act, better known as CALEA (see BW Online, 2/27/03, "These Are Not Your Father's Wiretaps"). And to some, the expansion of these powers to the Net seems reasonable. After all, CALEA's goal is to help law enforcement keep pace with changes in telecommunications technology, and never before in that industry's history has there been such rapid, tumultuous change. Today, calls are made over the Internet and via peer-to-peer networks such as Skype, and people often communicate more through e-mail and instant messaging than they do face-to-face (see BW Online, 1/6/04, "Skype: Telephony as File Trading").

The FBI warns that unless it has some influence over these new technologies, it'll be unable to keep up with terrorists and thieves. "The ability of federal, state, and local law enforcement to carry out critical electronic surveillance is being compromised today," the petition warns, adding that the task of protecting the public is growing more difficult every day. The FBI has asked the FCC to solicit comments on its proposal by Apr. 12 -- a lightening pace for the federal agency where matters of this kind normally take months, if not years, to be decided.

FOURTH AMENDMENT DEBATE. Political pressure to cave in to FBI demands is sure to be intense. But the FCC should think carefully before O.K.'ing this proposal. That's because what might appear a straightforward extension of a 10-year-old law is actually a land grab for new surveillance powers. Under CALEA, surveillance is no longer a "method of last resort" -- the phrase Congress used when authorizing wiretapping in 1968. Instead, it's a primary goal.

The FBI's latest request would extend the use of surveillance well beyond Internet phone companies. Legal experts warn that the ruling would apply to all ISPs, instant messaging services, even the likes of Sony (SNE) and Microsoft (MSFT), which make Internet-ready video-game consoles for multiplayer gaming.

"The heart of this debate is about the Fourth Amendment in the 21st century," says Marc Rotenburg, executive director of the Electronic Privacy Information Center in Washington, D.C. "Do we tell law enforcement that they can architect and oversee the development of communications technology, or do we maintain that they only should have access to information with reasonable cause and permission from a judge?"

READY TO COOPERATE. Privacy advocates know how they would answer. But let's consider the FBI's case. In its petition, the agency claims that "communications among surveillance targets are being lost and associated call-identifying information is not being provided in a timely manner" thanks to "providers who have failed to implement CALEA-compliant intercept capabilities."

O.K., where's the proof? Anecdotal information and plenty of press reports in the wake of September 11 reveal that corporations are willing -- often very willing -- to hand over any data requested by federal law enforcers. Cable companies such as Time Warner (TWC) and Cox (COX) have voluntarily developed their own wiretapping capabilities, often in concert with the FBI.

And leading consumer VoIP provider Vonage says it has been cooperating with law enforcement for the past 18 months, handing over call records, logs, and billing information when material is subpoenaed. It's true that Vonage doesn't yet have the ability to tap its lines. But to date, it has never been required by law to intercept calls, according to company spokesperson Brooke Schultz. Vonage engineers are now developing a standard to meet the FBI's needs.

BOTTLENECK CHECKPOINTS. Moreover, since when has tracking information on the Internet become so difficult? Internet technologies use standard protocols. And though each call or e-mail is chopped up into hundreds or thousands of pieces and sent over various routes, each packet hits one of several Internet bottlenecks.

"There are very few aspects of Net technology that can't yield up their secrets," says Stewart Baker, a Washington (D.C.) attorney who represents several large broadband providers and Internet portals. "Law enforcement may never have the convenience that it had when it was dealing with one telephone company in the U.S. But voluntary cooperation [as opposed to federal mandates] will make it difficult for criminals to operate using common Internet services."

I don't usually buy arguments for self-regulation, but Baker has a point. Even peer-to-peer phone service Skype, which automatically encrypts every call, is likely to cooperate with the feds when presented with a subpoena. Hosting terrorists, drug dealers, or other criminals on the network is bad business.

SHAM SCENARIO? Finally, it's not clear why the FBI needs new regulations to expand its power in the first place. It has long used a snooping technology called Carnivore to monitor the flow of communications across ISP networks. Since September 11, the Justice Dept. has won dramatic increases in legal authority thanks to the Patriot Act, including the right to use special subpoenas that don't require a judge to sign off under the Foreign Intelligence Surveillance Act.

In 2002, the FISA Court approved all 1,228 applications it received for wiretaps, up from 934 applications in 2001. The Justice Dept.'s budget also has skyrocketed. In 2003, it was $30.1 billion, up 22% from $24.5 billion in 2001 -- an indication that the FBI should be experiencing no shortage of resources.

In short, the FBI's claim that it lacks the authority or means to track criminal communication over new technologies seems at best disingenuous, at worst a sham. The FCC should reject the FBI's proposal -- or at least demand more proof that it needs such sweeping new powers. Law enforcement does require the ability to monitor Internet communications if and when there's suspicious activity. But it can do that without the power to approve or redesign Internet technology so that its primary feature is surveillance. Black covers privacy issues for BusinessWeek Online in her twice-monthly Privacy Matters column

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