Federal Wiretap Dilemma

Will a proposed new law slow the design of crucial technology?

Federal officials now want tougher laws to wiretap telephone and broadband carriers, The New York Times reported on Oct. 18. But that’s a two-edged sword. We want to trap terrorists before they can act. But we don’t want to block the advancement of communications technology for business needs or even for social networking. The dilemma of balancing Internet freedom with national security is compounded by the need to encourage rapid enough development of technology to keep the U.S. the world’s leader.

Telephone and broadband networks already are required to have interception capabilities under a 1994 law. In that year, Congress enacted the Communications Assistance for Law Enforcement Act (CALEA) to guard national security. It defines the obligation of telecommunications carriers to aid law enforcement in electronic surveillance. This has worked fairly well despite wild-eyed attacks from the American Civil Liberties Union (ACLU). In January 2006, for example, the ACLU rebuked the Bush Justice Department argument that there was a legal basis for warrantless domestic surveillance conducted by the National Security Agency. ACLU used the old cliché about the fox guarding the henhouse, saying Bush was undermining liberty and privacy.

For several months, officials from the F.B.I., national Security Agency, the Justice Department, the White House and other agencies have been trying to come up with a solution to work through the complexities of today’s communications systems. T hey reportedly have yet to decide just who fits the definition of a communications provider. But they seek a broad application so as to include companies that operate from outside of the U.S. Communication service providers, like telephone companies, are subject to wiretap warrants. Some maintain the capacity for interception. But others wait until they are served with federal orders to develop that capacity.

Law enforcement officials say that imposing a mandate to let them intercept and unscramble encrypted e-mail  messages is necessary preserve their investigative powers. “We’re not talking about expanded authority,” FBI General Council Valerie Caproni said. “We’re talking about our ability to execute our existing authority to protect the public safety and national security.” A terrorist could use a service that encrypts messages between his computer and its servers. In such a case, law enforcement people have to serve the warrant on a service provider to get an unscrambled version of the message. Communication service providers are subject to wiretap orders. But some don’t have the capacity to intercept. The F.B.I. has spent millions helping some communications companies develop electronic surveillance know-how.

James X. Dempsey, vice president of the Center for Democracy and Technology, an internet organization, fears that innovation will be stifled. He was quoted in a July Times story as saying the idea of a new law requiring interception and unscrambling of encrypted messages has “huge implications” that challenge “fundamental elements of the internet revolution.” They want to “redesign services that take advantage of the unique, and now pervasive, architecture of the Internet.” As an indication of the speedy evolution of telecommunications, fifty-six companies from the communications/networking sector rank among the 500 fastest growing firms in North America, according to the latest list from Deloitte consulting firm.

The Obama Administration wants Congress to make all services that provide communications, including e-mail transmitters using encrypted messages to be able to comply if served with a wiretap warrant. These include BlackBerry, social Web sites, such as Facebook, and software that permits “peer to peer” messaging, like Skype.

Skype is an application allowing users to make voice calls over the Internet, even overseas calls. To counter the terrorism threat, it was recently revealed that companies such as AT&T, Verizon, and MCI had been working closely with the F.B.I. for years to skirt the wiretap law in order to find terror plots before they were carried out. The companies even set up remote terminals in the F.B.I offices, staffing them with telecom experts. So-called “exigent letters” were used to ask for information on an emergency basis without a subpoena.

In a report in January, the Justice Department Inspector General criticized the practice as illegal. But the report also revealed that, surprisingly enough, the Obama Administration had issued a secret retroactive order saying it was legal for the F.B.I. to have dodged federal privacy protections. How that must wrench the insides of ACLU fanatics. F.B.I. employees got the phone records “to perform their critical mission to prevent a terrorist attack or support a counterterrorist investigation,” the agency explained.

Under the law currently, if a communications carrier provides security officials with the content of a phone call or e-mail plus information as to its recipient, the time and location, it can’t be fined. If a company does not meet these requirements, it can be fined by a judge or the Federal Communications Commission (FCC). But neither option has been invoked, law enforcement officials say, because the goal is to get the problem fixed.

An internet-based voting system in Washington, D.C., was recently hacked into by University of Michigan researchers. The hack enabled them even to change votes. The hack was invited but was unnoticed by election officials until the researchers told them what they had done. Washington began testing its Internet voting system Oct. 5. It was designed to let overseas military cast ballots quickly instead of relying on the postal system to issue ballots in time to meet voting deadlines. If technology provides the ability to change election votes, another threat to our democratic system is at hand.

All of which shows not only the dilemma of balancing Internet development with wiretaps for national security, but also the necessity for the United States to be unhampered in its drive to be the world’s wireless technology leader for peaceful and military needs--as well as to protect lawful voting.