Well, this stinks. Just a few weeks after Congress enraged privacy advocates by extending the FISA Amendments Act, a Bush-era warrantless wiretapping program, federal law enforcement agencies are scrambling to find ways to extend their reach even further. Now, they don't just want access to your old emails or your home phone. They want to be able to intercept your chat messages, Dropbox uploads and Skype calls. In the words of FBI general counsel Andrew Weissmann, "Those communications are being used for criminal conversations."
Criminals will use whatever means necessary to fly under the radar, but that hardly means that everyone uses these means for criminal purposes, and the potential for criminal activity is hardly an excuse to eliminate privacy protections. But here we are. Weissmann recently told the American Bar Association in Washington DC that the bureau was working hard on what it calls the "Going Dark" problem. The term basically refers to the government's inability to intercept certain types of communication.
Unlike the good old days when all it took was a few bugs and a couple phone taps to monitor the inner-workings of a criminal organization — unless the gangsters went for a walk, of course — now there are myriad options of privately owned methods of communication, most of them online. The Feds aren't necessarily talking about top secret, super underground criminal forums, though. They're talking about Gmail, Gchat, Skype, Facebook, Twitter, Dropbox and pretty much any other service that lets you send messages to other people.
Whether you realized it or not, the government's long had the ability to set up surveillance measures on communications networks. Thanks to the Communications Assistance for Law Enfrocement Act of 1994 (CALEA), the Feds can force Internet service providers and phone companies to give them access to their grids and install surveillance measures.
This law already applies to online chats and email, but the FBI's lawyers are now complaining that the whole process works too slowly, making the surveillance of real-time communications almost impossible. Last month, FBI general counsel Valerie Caproni told the House Judiciary Committee that "months can elapse between the time the government obtains a court order and surveillance begins." She added, "In the interim period, potentially critical information is lost even though a court has explicitly authorized the surveillance."
So basically what the Feds want is more power. They want more power to force Google's hand when they want access to emails and chat logs. It's unclear if they'd also want a way to tap into video chats, Google Hangouts and the like. (It's also unclear if any criminals are actually dumb enough to plan their capers via YouTube.)
However, the companies that would be subject to this heightened scrutiny aren't thrilled about the prospect. A Google representative told Slate that “CALEA doesn't apply to Gmail but an order under the Wiretap Act may" and said that the company was considering these kinds of requests to its annual transparency report. As we noticed a few months ago, takedown and information requests from governments to Google have skyrocketed recently, and the United States government leads the pack with the most number of requests.
Push come to privacy, though, this new FBI initiative isn't really about catching more criminals, at least not to law-abiding citizens. It's about the government's continually overzealous response to dealing with new technologies. Essentially, they've seen the level of control that they enjoyed back when wiretaps involved literally tapping into phone wires. But now they're clearly having a hard time finding the signal in the noise that is the new communications environment.
Instead of adding filters strategically, it sounds like the Feds would rather just get access to the entire torrent or at least have the capability to do so. If they win, you may have trouble finding your Fourth Amendment rights in the slurry of exchanges. Then again, the NSA stashed those away a long time ago. It's to the FBI's credit that they're willing to actually talk about how they want to spy on Americans.