[News] US Wants to Make It Easier to Wiretap the Internet

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Mon Sep 27 10:25:22 EDT 2010


September 27, 2010


U.S. Wants to Make It Easier to Wiretap the Internet

http://www.nytimes.com/2010/09/27/us/27wiretap.html?_r=1&emc=na&pagewanted=print

By 
<http://topics.nytimes.com/top/reference/timestopics/people/s/charlie_savage/index.html?inline=nyt-per>CHARLIE 
SAVAGE

WASHINGTON ­ Federal law enforcement and national 
security officials are preparing to seek sweeping 
new regulations for the Internet, arguing that 
their ability to wiretap criminal and terrorism 
suspects is “going dark” as people increasingly 
communicate online instead of by telephone.

Essentially, officials want Congress to require 
all services that enable communications ­ 
including encrypted e-mail transmitters like 
BlackBerry, social networking Web sites like 
<http://topics.nytimes.com/top/news/business/companies/facebook_inc/index.html?inline=nyt-org>Facebook 
and software that allows direct “peer to peer” 
messaging like 
<http://topics.nytimes.com/top/news/business/companies/skype_technologies_sa/index.html?inline=nyt-org>Skype 
­ to be technically capable of complying if 
served with a wiretap order. The mandate would 
include being able to intercept and unscramble encrypted messages.

The bill, which the Obama administration plans to 
submit to lawmakers next year, raises fresh 
questions about how to balance security needs 
with protecting privacy and fostering innovation. 
And because security services around the world 
face the same problem, it could set an example that is copied globally.

<http://www.cdt.org/personnel/jim-dempsey>James 
X. Dempsey, vice president of the Center for 
Democracy and Technology, an Internet policy 
group, said the proposal had “huge implications” 
and challenged “fundamental elements of the 
Internet revolution” ­ including its decentralized design.

“They are really asking for the authority to 
redesign services that take advantage of the 
unique, and now pervasive, architecture of the 
Internet,” he said. “They basically want to turn 
back the clock and make Internet services 
function the way that the telephone system used to function.”

But law enforcement officials contend that 
imposing such a mandate is reasonable and 
necessary to prevent the erosion of their investigative powers.

“We’re talking about lawfully authorized 
intercepts,” said 
<http://www.fbi.gov/libref/executives/caproni.htm>Valerie 
E. Caproni, general counsel for the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_bureau_of_investigation/index.html?inline=nyt-org>Federal 
Bureau of Investigation. “We’re not talking 
expanding authority. We’re talking about 
preserving our ability to execute our existing 
authority in order to protect the public safety and national security.”

Investigators have been concerned for years that 
changing communications technology could damage 
their ability to conduct surveillance. In recent 
months, officials from the F.B.I., the Justice 
Department, the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_security_agency/index.html?inline=nyt-org>National 
Security Agency, the White House and other 
agencies have been meeting to develop a proposed solution.

There is not yet agreement on important elements, 
like how to word statutory language defining who 
counts as a communications service provider, 
according to several officials familiar with the deliberations.

But they want it to apply broadly, including to 
companies that operate from servers abroad, like 
Research in Motion, the Canadian maker of 
BlackBerry devices. In recent months, that 
company has 
<http://www.nytimes.com/2010/08/09/technology/09rim.html>come 
into conflict with the governments of Dubai and 
India over their inability to conduct 
surveillance of messages sent via its encrypted service.

In the United States, phone and broadband 
networks are already required to have 
interception capabilities, under a 1994 law 
called the 
<http://www.askcalea.net/calea/>Communications 
Assistance to Law Enforcement Act. It aimed to 
ensure that government surveillance abilities 
would remain intact during the evolution from a 
copper-wire phone system to digital networks and cellphones.

Often, investigators can intercept communications 
at a switch operated by the network company. But 
sometimes ­ like when the target uses a service 
that encrypts messages between his computer and 
its servers ­ they must instead serve the order 
on a service provider to get unscrambled versions.

Like phone companies, communication service 
providers are subject to wiretap orders. But the 
1994 law does not apply to them. While some 
maintain interception capacities, others wait 
until they are served with orders to try to develop them.

The F.B.I.’s operational technologies division 
spent $9.75 million last year helping 
communication companies ­ including some subject 
to the 1994 law that had difficulties ­ do so. 
And its 
<http://www.justice.gov/jmd/2010summary/pdf/fbi-bud-summary.pdf>2010 
budget included $9 million for a “Going Dark 
Program” to bolster its electronic surveillance capabilities.

Beyond such costs, Ms. Caproni said, F.B.I. 
efforts to help retrofit services have a major 
shortcoming: the process can delay their ability 
to wiretap a suspect for months.

Moreover, some services encrypt messages between 
users, so that even the provider cannot unscramble them.

There is no public data about how often 
court-approved surveillance is frustrated because 
of a service’s technical design.

But as an example, one official said, an 
investigation into a drug cartel earlier this 
year was stymied because smugglers used 
peer-to-peer software, which is difficult to 
intercept because it is not routed through a 
central hub. Agents eventually installed 
surveillance equipment in a suspect’s office, but 
that tactic was “risky,” the official said, and 
the delay “prevented the interception of pertinent communications.”

Moreover, according to several other officials, 
after the failed Times Square bombing in May, 
investigators discovered that the suspect, 
<http://topics.nytimes.com/top/reference/timestopics/people/s/faisal_shahzad/index.html?inline=nyt-per>Faisal 
Shahzad, had been communicating with a service 
that lacked prebuilt interception capacity. If he 
had aroused suspicion beforehand, there would 
have been a delay before he could have been wiretapped.

To counter such problems, officials are 
coalescing around several of the proposal’s likely requirements:

¶ Communications services that encrypt messages 
must have a way to unscramble them.

¶ Foreign-based providers that do business inside 
the United States must install a domestic office 
capable of performing intercepts.

¶ Developers of software that enables 
peer-to-peer communication must redesign their service to allow interception.

Providers that failed to comply would face fines 
or some other penalty. But the proposal is likely 
to direct companies to come up with their own way 
to meet the mandates. Writing any statute in 
“technologically neutral” terms would also help 
prevent it from becoming obsolete, officials said.

Even with such a law, some gaps could remain. It 
is not clear how it could compel compliance by 
overseas services that do no domestic business, 
or from a “freeware” application developed by volunteers.

In their battle with Research in Motion, 
countries like Dubai have sought leverage by 
threatening to block BlackBerry data from their 
networks. But Ms. Caproni said the F.B.I. did not 
support filtering the Internet in the United States.

Still, even a proposal that consists only of a 
legal mandate is likely to be controversial, said 
<http://www.perkinscoie.com/msussmann/>Michael A. 
Sussmann, a former Justice Department lawyer who 
advises communications providers.

“It would be an enormous change for newly covered 
companies,” he said. “Implementation would be a 
huge technology and security headache, and the 
investigative burden and costs will shift to providers.”

Several privacy and technology advocates argued 
that requiring interception capabilities would 
create holes that would inevitably be exploited by hackers.

<http://www.cs.columbia.edu/%7Esmb/>Steven M. 
Bellovin, a 
<http://topics.nytimes.com/top/reference/timestopics/organizations/c/columbia_university/index.html?inline=nyt-org>Columbia 
University computer science professor, pointed to 
an 
<http://bits.blogs.nytimes.com/2007/07/10/engineers-as-counterspys-how-the-greek-cellphone-system-was-bugged/>episode 
in Greece: In 2005, it was discovered that 
hackers had taken advantage of a legally mandated 
wiretap function to spy on top officials’ phones, 
including the prime minister’s.

“I think it’s a disaster waiting to happen,” he 
said. “If they start building in all these back doors, they will be exploited.”

<http://www.radcliffe.edu/fellowships/fellows_2011slandau.aspx>Susan 
Landau, a Radcliffe Institute of Advanced Study 
fellow and former Sun Microsystems engineer, 
argued that the proposal would raise costly 
impediments to innovation by small startups.

“Every engineer who is developing the wiretap 
system is an engineer who is not building in 
greater security, more features, or getting the product out faster,” she said.

Moreover, providers of services featuring 
user-to-user encryption are likely to object to 
watering it down. Similarly, in the late 1990s, 
encryption makers fought off a proposal to 
require them to include a back door enabling 
wiretapping, arguing it would cripple their products in the global market.

But law enforcement officials rejected such 
arguments. They said including an interception 
capability from the start was less likely to 
inadvertently create security holes than 
retrofitting it after receiving a wiretap order.

They also noted that critics predicted that the 
1994 law would impede cellphone innovation, but 
that technology continued to improve. And their 
envisioned decryption mandate is modest, they 
contended, because service providers ­ not the government ­ would hold the key.

“No one should be promising their customers that 
they will thumb their nose at a U.S. court 
order,” Ms. Caproni said. “They can promise 
strong encryption. They just need to figure out 
how they can provide us plain text.”




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