President Barack Obama’s administration may seek fines and incentives to conduct surveillance through Internet services offered by companies including Microsoft Corp. (MSFT) and Google Inc. (GOOG), a Justice Department official said.
No decisions have been made and efforts to fine companies that don’t comply with electronic-surveillance requests from law enforcement agencies are already opposed by industry groups.
Fines are “one of the options” that have been raised by government officials, Jenny Durkan, U.S. Attorney for the Western District of Washington, said today in an interview in Washington.
“There’s no one option right now that is top of the list,” she said. “We want incentives. We want laws. We want the ability to make sure as technology advances our capability to gather evidence keeps up with it. while protecting personal privacy and industry’s needs to be innovative and competitive.”
The administration is discussing ways for Congress to update the Communications Assistance for Law Enforcement Act, or CALEA. Law enforcement groups such as the International Association of Police Chiefs want Congress to revise the law to compel more companies providing communications services to build intercept tools that let agencies conduct surveillance with court orders.
“We just don’t have the technology to keep up with what’s going on,” Peter Modafferi, chairman of the association’s investigative operations committee, said in a phone interview. “It’s not just Verizon and phone companies like that, there’s Twitter and all kinds of methods for people to communicate.”
The administration isn’t seeking any new surveillance authority, Dean Boyd, a Department of Justice spokesman, said in an e-mail.
The White House has been discussing ways for law enforcement to keep pace with technological advancements that suspects use to “go dark” by avoiding online detection, said spokeswoman Caitlin Hayden, in an e-mail. “DOJ is working with other agencies on a way forward that protects privacy, preserves corporate innovation, and provides the tools our law enforcement and counterterrorism professionals require,” she said.
The law was written primarily to ensure that telecommunications companies have the ability to aid law enforcement in conducting surveillance.
Groups like the Internet Association and the Computer and Communications Industry Association have expressed opposition to fining companies for not complying with surveillance requests from law enforcement.
Startup companies say being required to have intercept capabilities in their products could cost them customers, expose them to liability, open them up to cyber attacks and force them to reconfigure products that keeps user data anonymous.
Durkan said the debate within the administration includes trying not to disrupt technology companies.
“What we have to make sure is we get the evidence we need to address the threat,” she said. “As technology advances we need solutions but the solutions are not always government-based.”
It also isn’t clear what companies would be fined for, Gregory Nojeim, a senior lawyer for the Center for Democracy and Technology, said in an interview today.
“For peer-to-peer communications in particular, what does it mean to mandate they be wiretap-able by the FBI?” Nojeim asked. “I think imposing that mandate imposes a vulnerability that runs directly counter to the cybersecurity efforts that Congress, industry and the administration have been pursuing.”
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