Privacy Challenge for Proposed Wiretap Law

30 April 2013 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

The FBI wants Congress to pass laws that would force Facebook, Google, and others to intercept Internet online communications when they occur or penalize those companies who do not comply. The Washington Post reported that the FBI:

...concerns that it is unable to tap the Internet communications of terrorists and other criminals, the task force’s proposal would penalize companies that failed to heed wiretap orders — court authorizations for the government to intercept suspects’ communications.

Andrew Weissmann, the FBI’s general counsel, recently said:

We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’ Other countries have that. Most people assume that’s what you’re getting when you go to a court.

The FBI’s proposal would supplement CALEA (1994 Communications Assistance for Law Enforcement Act) which became less effective in “2010, when Google began end-to-end encryption of its e-mail and text messages after its networks were hacked. Facebook followed suit. That made it more difficult for the FBI to intercept e-mail by serving a court order on the Internet service provider, whose pipes would carry the encrypted traffic.”

The proposed law should make clear that “CALEA extends to Internet phone calls conducted between two computer users without going through a central company server — what is sometimes called “peer-to-peer” communication.” If passed in the current form under the new law:

...a court could levy a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders, according to persons who spoke on the condition of anonymity to discuss internal deliberations. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.

Leslie Harris President of the Center for Democracy & Technology opposes the propose law:

What the FBI is proposing sounds benign, but it comes with such onerous penalties that it would force developers to seek pre-approval from the FBI. No one is going to want to face fines that double every day, so they will go to the FBI and work it out in advance, diverting resources, slowing innovation, and resulting in less secure products.

Clearly laws from 20 years ago need to be updated to how the Internet communications work today, and it will be interesting to see the debate in Congress.
 

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