Earlier this month, Robert Mueller, Director of the FBI, testified before the Senate Committee on Homeland Security and Governmental Affairs.  Among other issues of national security, Mueller stressed the crucial role cyber security plays in the FBI’s efforts to combat organized crime and terrorism.  Mueller indicated that the FBI will continue its push to amend the Communications Assistance of Law Enforcement Act.  The sought after amendment would require internet-based communications companies to create encryption backdoors for law enforcement surveillance.  In other words, the FBI wants companies that operate e-mail and social media websites to re-write their code to make government surveillance much easier.

Mueller’s statement is the latest in a long battle over extending the wiretap capabilities of law enforcement agencies to Internet-based communications.  This current proposal finds its origins in 2010, when the New York Times reported that federal law enforcement officials planned on urging Congress to mandate changes in Internet communications.  As noted above, these changes would make it easier for government officials to capture and unscramble the encrypted messages sent online.  As far back as 1991, Congressional leaders have tried to pass statutes which would “ensure that communications systems permit the government to obtain the plain text contents of voice, data, and other communications when appropriately authorized by law.”

From a citizen’s perspective, the expansion of law enforcement agencies’ ability to wiretap Internet communications implicates traditional Fourth Amendment concerns regarding the right to privacy.  But beyond the time-honored debates of privacy and government intrusion lie novel issues posed by the internet’s unique landscape.  The information exchanged on the internet is fundamentally different than that conveyed via telephone.  Through the internet people can exchange photographs, videos, songs, and a myriad of other electronically stored documents.  Also, individuals create detailed records of their consumer habits while shopping online.  When compared to the verbal exchange of a phone conversation, the quantity of information exchanged on the internet is staggering.  While it may be difficult to say which medium, internet or phone, is more private, the internet clearly allows for a much wider and diverse array of information than a verbal exchange.

So, where does this latest challenge to privacy leave us?  For now, right where we were.  The history of trying to wiretap the internet is largely one of failure for the government.  However, Mueller’s testimony makes clear that as crime and terrorism move to the internet so too must law enforcement.  This move makes it more apt to ask not if the government will get its desired access but when it will. With such fundamental civil liberties at stake, how the government will wiretap the internet may be the most important question of all.

Jonathan Hoffmann

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One Response to Wiretapping the Internet

  1. Brad Edmondson says:

    It’s one thing for the government to require companies to provide access to the information they already collect–but it’s another to tell them how to collect information, that they need to collect more information, or that they need to build in additional data-collection functions (including encryption backdoors).

    It’s important to remember that encryption backdoors (and other data-collection backdoors) aren’t only open to the government. Every backdoor is also available to cybercriminals, if they can figure out how to open it. For important products, the cybercriminals interested in breaking in are at least as smart as the engineers designing the the system, and they are definitely more numerous. Plus, they only have to win once, with one vulnerability, and the tools the government has asked for are laid bare to whoever can break in.

    On top of that, these government tools will miss the very worst actors, who will move onto non-compliant darknets. Unless the government is willing to follow in China’s footsteps and block a significant amount of traffic, it won’t be able to stop the flight to the darknet.

    All in all, while the net the government is proposing to build would sweep up some online crime, it will miss sophisticated bad actors and make our technologies more vulnerable to break-in. It is hard to make the case that this program is worth the costs.