More backdoor surveillance…
(CNET) – 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.
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, CNETthat 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.”