Legal Commentary

Obama to Seek Increased Wiretapping on Internet Communications

By Jeralyn

The Obama Administration intends to introduce a bill next year that will make it easier for feds to wiretap your internet communications.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like 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.

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Apparently, CALEA, the 1994 bill that required phone companies to employ technology that would enable them to comply with wiretap orders didn't apply to online service providers.

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 2010 budget included $9 million for a “Going Dark Program” to bolster its electronic surveillance capabilities.

I think there's a big difference between intercepting phone conversations and text messages. It's not true that the same probable cause showing for a wiretap of phone conversations will suffice for interception of text messages. Even DOJ acknowledges a separate probable cause showing is required.

But an even bigger issue I think is minimization. When a phone call is intercepted and the listening agents realize it's either privileged or not about the criminal activity subject to the wiretap order, they have to stop listening. (They can go back to spot monitor and ensure the conversation hasn't turned to a discussion of criminal activity.) With text messages, if the agents at the monitoring receive the messages directly, they are viewing the non-criminal related and privileged ones as well as the ones the wiretap order authorizes them to obtain. The wiretap orders should require "a wall" between the monitoring post and the agents, so that text messages go to an independent monitor who then provides law enforcement only with the ones that are subject to interception under the order. That would cost a pretty penny.

Those who are pushing this bill say it's no big deal.

“We’re talking about lawfully authorized intercepts,” said Valerie E. Caproni, general counsel for the 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.”

Hogwash.

Full post as published by TalkLeft on September 27, 2010 (boomark / email).