FBI wants surveillance backdoors in Gmail, Facebook, more
http://news.cnet.com/8301-1009_3-574...web-sites-now/
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See also:
Going Dark: Lawful Electronic Surveillance in the Face of New
Technologies
http://www.fbi.gov/news/testimony/go...w-technologies
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4th May 2012 21:25 UTC
CNET learns the FBI is quietly pushing its plan to force surveillance
backdoors on social networks, VoIP, and Web e-mail providers, and that
the bureau is asking Internet companies not to oppose a law making those
backdoors mandatory.
The FBI is asking Internet companies not to oppose a controversial
proposal that would require firms, including Microsoft, Facebook, Yahoo,
and Google, to build in backdoors for government surveillance.
In meetings with industry representatives, the White House, and U.S.
senators, senior FBI officials argue the dramatic shift in communication
from the telephone system to the Internet has made it far more difficult
for agents to wiretap Americans suspected of illegal activities, CNET
has learned.
The FBI general counsel's office has drafted a proposed law that the
bureau claims is the best solution: requiring 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.
"If you create a service, product, or app that allows a user to
communicate, you get the privilege of adding that extra coding," an
industry representative who has reviewed the FBI's draft legislation
told CNET. The requirements apply only if a threshold of a certain
number of users is exceeded, according to a second industry
representative briefed on it.
The FBI's proposal would amend a 1994 law, called the Communications
Assistance for Law Enforcement Act, or CALEA, that currently applies
only to telecommunications providers, not Web companies. The Federal
Communications Commission extended CALEA in 2004 to apply to broadband
networks.
"Going Dark" timeline
June 2008: FBI Director Robert Mueller and his aides brief Sens. Barbara
Mikulski, Richard Shelby, and Ted Stevens on "Going Dark."
June 2008: FBI Assistant Director Kerry Haynes holds "Going Dark"
briefing for Senate appropriations subcommittee and offers a "classified
version of this briefing" at Quantico.
August 2008: Mueller briefed on Going Dark at strategy meeting.
September 2008: FBI completes a "high-level explanation" of CALEA
amendment package.
May 2009: FBI Assistant Director Rich Haley briefs Senate Intelligence
committee and Mikulsi staffers on how bureau is "dealing with the 'Going
Dark' issue.'" Mikulski plans to bring up "Going Dark" at a closed-door
hearing the following week.
May 2009: Haley briefs Rep. Dutch Ruppersberger, currently the top
Democrat on House Intelligence, who would later co-author CISPA.
September 2008: FBI staff briefed by RAND, which was commissioned to
"look at" Going Dark.
November 2008: FBI Assistant Director Marcus Thomas, who oversees the
Quantico-based Operational Technology Division, prepares briefing for
President-Elect Obama's transition team.
December 2008: FBI intelligence analyst in Communications Analysis Unit
begins analysis of VoIP surveillance.
February 2009: FBI memo to all field offices asks for anecdotal
information about cases where "investigations have been negatively
impacted" by lack of data retention or Internet interception.
March 2009: Mueller's advisory board meets for a full-day briefing on
Going Dark.
April 2009: FBI distributes presentation for White House meeting on
Going Dark.
April 2009: FBI warns that the Going Dark project is "yellow," meaning
limited progress, because of "new administration personnel not being in
place for briefings."
April 2009: FBI general counsel's office reports that the bureau's Data
Interception Technology Unit has "compiled a list of FISA dockets...
that the FBI has been unable to fully implement." That's a reference to
telecom companies that are already covered by the FCC's expansion of
CALEA.
May 2009: FBI's internal Wikipedia-knockoff Bureaupedia entry for
"National Lawful Intercept Strategy" includes section on "modernize
lawful intercept laws."
May 2009: FBI e-mail boasts that the bureau's plan has "gotten
attention" from industry, but "we need to strengthen the business case
on this."
June 2009: FBI's Office of Congressional Affairs prepares Going Dark
briefing for closed-door session of Senate Appropriations subcommittee.
July 2010: FBI e-mail says the "Going Dark Working Group (GDWG)
continues to ask for examples from Cvber investigations where
investigators have had problems" because of new technologies.
September 2010: FBI staff operations specialist in its Counterterrorism
Division sends e-mail on difficulties in "obtaining information from
Internet Service Providers and social-networking sites."
FBI Director Robert Mueller is not asking companies to support the
bureau's CALEA expansion, but instead is "asking what can go in it to
minimize impacts," one participant in the discussions says. That
included a scheduled trip this month to the West Coast -- which was
subsequently postponed -- to meet with Internet companies' CEOs and top
lawyers.
A further expansion of CALEA is unlikely to be applauded by tech
companies, their customers, or privacy groups. Apple (which distributes
iChat and FaceTime) is currently lobbying on the topic, according to
disclosure documents filed with Congress two weeks ago. Microsoft (which
owns Skype and Hotmail) says its lobbyists are following the topic
because it's "an area of ongoing interest to us." Google, Yahoo, and
Facebook declined to comment.
In February 2011, CNET was the first to report that then-FBI general
counsel Valerie Caproni was planning to warn Congress of what the bureau
calls its "Going Dark" problem, meaning that its surveillance
capabilities may diminish as technology advances. Caproni singled out
"Web-based e-mail, social-networking sites, and peer-to-peer
communications" as problems that have left the FBI "increasingly unable"
to conduct the same kind of wiretapping it could in the past.
In addition to the FBI's legislative proposal, there are indications
that the Federal Communications Commission is considering reinterpreting
CALEA to demand that products that allow video or voice chat over the
Internet -- from Skype to Google Hangouts to Xbox Live -- include
surveillance backdoors to help the FBI with its "Going Dark" program.
CALEA applies to technologies that are a "substantial replacement" for
the telephone system.
"We have noticed a massive uptick in the amount of FCC CALEA inquiries
and enforcement proceedings within the last year, most of which are
intended to address 'Going Dark' issues," says Christopher Canter, lead
compliance counsel at the Marashlian and Donahue law firm, which
specializes in CALEA. "This generally means that the FCC is laying the
groundwork for regulatory action."
Subsentio, a Colorado-based company that sells CALEA compliance products
and worked with the Justice Department when it asked the FCC to extend
CALEA seven years ago, says the FBI's draft legislation was prepared
with the compliance costs of Internet companies in mind.
In a statement to CNET, Subsentio President Steve Bock said that the
measure provides a "safe harbor" for Internet companies as long as the
interception techniques are "'good enough' solutions approved by the
attorney general."
Another option that would be permitted, Bock said, is if companies
"supply the government with proprietary information to decode
information" obtained through a wiretap or other type of lawful
interception, rather than "provide a complex system for converting the
information into an industry standard format."
A representative for the FBI told CNET today that: "(There are)
significant challenges posed to the FBI in the accomplishment of our
diverse mission. These include those that result from the advent of
rapidly changing technology. A growing gap exists between the statutory
authority of law enforcement to intercept electronic communications
pursuant to court order and our practical ability to intercept those
communications. The FBI believes that if this gap continues to grow,
there is a very real risk of the government 'going dark,' resulting in
an increased risk to national security and public safety."
Next steps
The FBI's legislation, which has been approved by the Department of
Justice, is one component of what the bureau has internally called the
"National Electronic Surveillance Strategy." Documents obtained by the
Electronic Frontier Foundation show that since 2006, Going Dark has been
a worry inside the bureau, which employed 107 full-time equivalent
people on the project as of 2009, commissioned a RAND study, and sought
extensive technical input from the bureau's secretive Operational
Technology Division in Quantico, Va. The division boasts of developing
the "latest and greatest investigative technologies to catch terrorists
and criminals."
But the White House, perhaps less inclined than the bureau to initiate
what would likely be a bruising privacy battle, has not sent the FBI's
CALEA amendments to Capitol Hill, even though they were expected last
year. (A representative for Sen. Patrick Leahy, head of the Judiciary
committee and original author of CALEA, said today that "we have not
seen any proposals from the administration.")
Mueller said in December that the CALEA amendments will be "coordinated
through the interagency process," meaning they would need to receive
administration-wide approval.
Stewart Baker, a partner at Steptoe and Johnson who is the former
assistant secretary for policy at Homeland Security, said the FBI has
"faced difficulty getting its legislative proposals through an
administration staffed in large part by people who lived through the
CALEA and crypto fights of the Clinton administration, and who are
jaundiced about law enforcement regulation of technology -- overly
jaundiced, in my view."
On the other hand, as a senator in the 1990s, Vice President Joe Biden
introduced a bill at the FBI's behest that echoes the bureau's proposal
today. Biden's bill said companies should "ensure that communications
systems permit the government to obtain the plain text contents of
voice, data, and other communications when appropriately authorized by
law." (Biden's legislation spurred the public release of PGP, one of the
first easy-to-use encryption utilities.)
The Justice Department did not respond to a request for comment. An FCC
representative referred questions to the Public Safety and Homeland
Security Bureau, which declined to comment.
From the FBI's perspective, expanding CALEA to cover VoIP, Web e-mail,
and social networks isn't expanding wiretapping law: If a court order is
required today, one will be required tomorrow as well. Rather, it's
making sure that a wiretap is guaranteed to produce results.
But that nuanced argument could prove radioactive among an Internet
community already skeptical of government efforts in the wake of
protests over the Stop Online Piracy Act, or SOPA, in January, and the
CISPA data-sharing bill last month. And even if startups or hobbyist
projects are exempted if they stay below the user threshold, it's hardly
clear how open-source or free software projects such as Linphone,
KPhone, and Zfone -- or Nicholas Merrill's proposal for a
privacy-protective Internet provider -- will comply.
The FBI's CALEA amendments could be particularly troublesome for Zfone.
Phil Zimmermann, the creator of PGP who became a privacy icon two
decades ago after being threatened with criminal prosecution, announced
Zfone in 2005 as a way to protect the privacy of VoIP users. Zfone
scrambles the entire conversation from end to end.
"I worry about the government mandating backdoors into these kinds of
communications," says Jennifer Lynch, an attorney at the San
Francisco-based Electronic Frontier Foundation, which has obtained
documents from the FBI relating to its proposed expansion of CALEA.
As CNET was the first to report in 2003, representatives of the FBI's
Electronic Surveillance Technology Section in Chantilly, Va., began
quietly lobbying the FCC to force broadband providers to provide
more-efficient, standardized surveillance facilities. The FCC approved
that requirement a year later, sweeping in Internet phone companies that
tie into the existing telecommunications system. It was upheld in 2006
by a federal appeals court.
But the FCC never granted the FBI's request to rewrite CALEA to cover
instant messaging and VoIP programs that are not "managed"--meaning
peer-to-peer programs like Apple's Facetime, iChat/AIM, Gmail's video
chat, and Xbox Live's in-game chat that do not use the public telephone
network.
If there is going to be a CALEA rewrite, "industry would like to see any
new legislation include some protections against disclosure of any trade
secrets or other confidential information that might be shared with law
enforcement, so that they are not released, for example, during open
court proceedings," says Roszel Thomsen, a partner at Thomsen and Burke
who represents technology companies and is a member of an FBI study
group. He suggests that such language would make it "somewhat easier"
for both industry and the police to respond to new technologies.
But industry groups aren't necessarily going to roll over without a
fight. TechAmerica, a trade association that includes representatives of
HP, eBay, IBM, Qualcomm, and other tech companies on its board of
directors, has been lobbying against a CALEA expansion. Such a law would
"represent a sea change in government surveillance law, imposing
significant compliance costs on both traditional (think local exchange
carriers) and nontraditional (think social media) communications
companies," TechAmerica said in e-mail today.
Ross Schulman, public policy and regulatory counsel at the Computer and
Communications Industry Association, adds: "New methods of communication
should not be subject to a government green light before they can be
used."
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