The White House wants additional power to snoop on private e-mail and social- network communications in the interest of national security.
These are thorny issues, not easily resolved. Our advice is to go slowly.
Once government intervenes, even for the best of motives, that authority rarely is rescinded. There also promises to be unintended consequences and perhaps more damage than benefit if the federal government plows ahead without regard to tradeoffs and costs.
The New York Times recently reported that “law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet.” Authorities say they are losing ability to wiretap criminal and terrorism suspects because people increasingly communicate online rather than by telephone.
This is a legitimate concern.
However, the White House reportedly wants Congress to require all Internet communications services, such as “encrypted e-mail transmitters like BlackBerry, social networking websites like Facebook and software that allows direct ‘peer to peer’ messaging, like Skype,” to make technical changes to give government, if authorized by a court wiretap order, the ability to intercept and unscramble encrypted messages. The administration plans to submit a bill to lawmakers next year, the Times reported.
“They are really asking for the authority to redesign services that take advantage of the unique, and now pervasive, architecture of the Internet,” James X. Dempsey, vice president of the Center for Democracy and Technology, an Internet policy group, told the Times. “They
basically want to turn back the clock and make Internet services function the way that the telephone system used to function.”
FBI general counsel Valerie E. Caproni countered: “We’re talking about lawfully authorized intercepts. 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.”
But the administration seeks to listen in to online communications not only believed by users to be private, but encrypted precisely to prevent third-party snooping. The other side of the coin is government investigators’ growing concern that as technology changes, their
surveillance capabilities are hampered. The 1994 Communications Assistance to Law Enforcement Act applied the same government surveillance authority to digital networks and to cell phones as had been the case for copper-wire telephone systems.
While communications can be intercepted at a switch operated by a network company, when the target uses encryption provided between his computer and the servers, authorities must serve the court order on the intermediary service provider to get unscrambled versions of the communications. The 1994 law doesn’t apply to them, and some wait until they are served with orders before trying to develop the ability to unscramble messages, which sometimes they can’t do.
This is the basis for the administration’s desire to require communications services to have a method of unscrambling messages, and for foreign-based providers doing business in the U.S. to install a domestic office with such capability and for software developers to redesign peer-to-peer communication services to permit interception. Penalties would include fines for noncompliance, the Times reported.
These demands are fraught with problems. Privacy and technology advocates point out the government would shift its investigative burden and its costs to providers. Requiring backdoor access to encrypted systems also would create holes that hackers are likely to exploit, exposing users to identity theft and invasion of privacy.
Moreover, limited private resources that otherwise might be used to advance Internet innovation would be diverted. As Susan Landau, a Radcliffe Institute of Advanced Study fellow and former Sun Microsystems engineer, told the Times: “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.”