By DeClan McCullagh | CNET | May 4, 2012
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.
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."
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."