- 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.
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- 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").
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- 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.
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- 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.
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- 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.
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- "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?"
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- 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."
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- 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.
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- 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.
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- 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.
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- "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."
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- 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.
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- 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.
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- 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.
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- 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.
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- - Black covers privacy issues for BusinessWeek Online
in her twice-monthly Privacy Matters column Copyright 2004, by The McGraw-Hill
Companies Inc. All rights reserved.
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- http://www.businessweek.com/technology/content/mar2004/tc20040318_2440_tc073.htm
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