Expanding Internet Surveillance Capabilities for Police

The shift from the telephone to the Internet as a primary means of communication is troubling FBI agents who claim that their ability to intercept communications of suspected criminals over the Internet is extremely limited.[1] Currently, most web sites are not required to provide surveillance capabilities for the government and law enforcement officials.[2] FBI director Robert Mueller states that “[b]ecause of [the] gap between technology and the law, law enforcement is increasingly unable to access the information it needs to protect public safety and the evidence it needs to bring criminals to justice.”[3] Thus, in an effort to decrease the surveillance obstacles the Internet imposes, the FBI, in what it calls the “Going Dark” problem, seeks to amend the 1994 Communications Assistance for Law Enforcement Act (“CALEA”) by “requir[ing] that social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail alter their code to ensure their products are wiretap-friendly.”[4] Examples of sites that would be affected by such a change include Microsoft, Facebook, Google, and Yahoo.

Currently, CALEA applies only to “telecommunications carriers,” which the Act defines as follows:

(1) A person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire;

(2) A person or entity engaged in providing commercial mobile service . . . or

(3) A person or entity that the [Federal Communications] Commission has found is engaged in providing wire or electronic communication switching or transmission service such that the service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of CALEA.[5]

These definitions are not broad enough to encompass all communication-enabling Web sites because such sites do not qualify as replacements for a “substantial portion of the local telephone exchange service.”[6] However, the FBI’s proposed expansion of CALEA would bring these sites into the Act’s scope.

The FBI’s push to amend CALEA has its critics, of course, who contend that expanding wiretapping laws for the Internet is unnecessary and infringes upon an individual’s Fourth Amendment right against unreasonable searches and seizures, as well as due process rights.[7] In May 2012, FBI director Robert Mueller appeared on Capitol Hill and addressed the privacy concerns in connection with CALEA’s extension, stating that privacy should not be a major concern because police will not be permitted to carry out any wiretapping activities unless a court order is issued.[8] “What we’re looking at is some form of legislation that will assure that when we get the appropriate court order that those individuals — individual companies are served with that order do have the capability and the capacity to respond to that order[,]” states Mueller.[9]

While the FBI’s proposal may ultimately prove too difficult for Web companies to comply with, there are less extreme options that may achieve the same results, such as requiring Web sites to provide police with proprietary information to decode online communications of suspected criminals. Either way, wiretapping of Internet communications pursuant to court order should be afforded some flexibility in the law if it will result in increased protection for the community at large.

[1] Declan McCullagh, FBI renews broad Internet surveillance push, Cnet.com (Sept. 22, 2012, 7:00 AM), http://news.cnet.com/8301-13578_3-57518265-38/fbi-renews-broad-internet-surveillance-push/.

[2] McCullagh, FBI renews, supra note 1.

[3] McCullagh, FBI renews, supra note 1.

[4] McCullagh, FBI renews, supra note 1.

[5] CALEA Definitions, 47 C.F.R. § 1.20002(e).

[6] Id. (emphasis added).

[7] McCullagh, FBI renews, supra note 1. “New technologies have provided the FBI with unprecedented capabilities to conduct surveillance, making it faster and easier for the government to take a look at the increasingly intimate online portrayal of the lives of Americans. No longer does the government face anonymous pay-phones or the challenge of physically tracking a person’s location through time-consuming manual surveillance. Plus, with more and more conversations documented by some sort of electronic record, it seems to us that law enforcement has had no problem getting access to digital material from telecommunications providers with little judicial oversight or scrutiny. To ensure that the laws keep pace with new technology, we must ensure that the Fourth Amendment and due process remain paramount.” Id.

[8] Declan McCullagh, FBI ‘looking at’ law making Web sites wiretap-ready, director says, Cnet.com, (May 18, 2012, 1:17 PM), http://news.cnet.com/8301-1009_3-57437391-83/fbi-looking-at-law-making-web-sites-wiretap-ready-director-says/.

[9] McCullagh, FBI ‘looking at’, supra note 8.

Author: Rachel Sigmund

Rachel is a 3L and a Senior Editor on the RCTLJ for the 2012-2013 academic year. Rachel is responsible for keeping the RCTLJ website current with the most recent and innovative computer and technology related news stories. Prior to attending law school, Rachel received a B.S. in Psychology with a Business Concentration from Pennsylvania State University's Schreyer Honors College in 2010. Currently, Rachel is a Summer Associate at the real estate law firm of Adam Leitman Bailey, P.C. in New York City. In July 2013, Rachel will sit for the New York and New Jersey Bar Exams.

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