Patrice Riemens on Mon, 27 Sep 2010 12:47:46 +0200 (CEST)

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<nettime> Charlie Savage: U.S. Is Working to Ease Wiretaps on the Internet (NYT)

bwo Eveline Lubbers with thanks

U.S. Is Working to Ease Wiretaps on the Internet
Published: September 27, 2010

WASHINGTON ? Federal law enforcement and national security officials
are preparing to seek sweeping new regulations for the Internet,
arguing that their ability to wiretap criminal and terrorism suspects
is ?going dark? as people increasingly communicate online instead of
by telephone.

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

The bill, which the Obama administration plans to submit to lawmakers
next year, raises fresh questions about how to balance security needs
with protecting privacy and fostering innovation. And because security
services around the world face the same problem, it could set an
example that is copied globally.

James X. Dempsey, vice president of the Center for Democracy and
Technology, an Internet policy group, said the proposal had ?huge
implications? and challenged ?fundamental elements of the Internet
revolution? ? including its decentralized design.

?They are really asking for the authority to redesign services that
take advantage of the unique, and now pervasive, architecture of the
Internet,? he said. ?They basically want to turn back the clock and
make Internet services function the way that the telephone system used
to function.?

But law enforcement officials contend that imposing such a mandate is
reasonable and necessary to prevent the erosion of their investigative

?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.?

Investigators have been concerned for years that changing
communications technology could damage their ability to conduct
surveillance. In recent months, officials from the F.B.I., the Justice
Department, the National Security Agency, the White House and other
agencies have been meeting to develop a proposed solution.

There is not yet agreement on important elements, like how to word
statutory language defining who counts as a communications service
provider, according to several officials familiar with the

But they want it to apply broadly, including to companies that operate
from servers abroad, like Research in Motion, the Canadian maker of
BlackBerry devices. In recent months, that company has come into
conflict with the governments of Dubai and India over their inability
to conduct surveillance of messages sent via its encrypted service.

In the United States, phone and broadband networks are already
required to have interception capabilities, under a 1994 law called
the Communications Assistance to Law Enforcement Act. It aimed to
ensure that government surveillance abilities would remain intact
during the evolution from a copper-wire phone system to digital
networks and cellphones.

Often, investigators can intercept communications at a switch operated
by the network company. But sometimes ? like when the target uses a
service that encrypts messages between his computer and its servers ?
they must instead serve the order on a service provider to get
unscrambled versions.

Like phone companies, communication service providers are subject to
wiretap orders. But the 1994 law does not apply to them. While some
maintain interception capacities, others wait until they are served
with orders to try to develop them.

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.

Beyond such costs, Ms. Caproni said, F.B.I. efforts to help retrofit
services have a major shortcoming: the process can delay their ability
to wiretap a suspect for months.

Moreover, some services encrypt messages between users, so that even
the provider cannot unscramble them.

There is no public data about how often court-approved surveillance is
frustrated because of a service?s technical design.

But as an example, one official said, an investigation into a drug
cartel earlier this year was stymied because smugglers used peer-to-
peer software, which is difficult to intercept because it is not
routed through a central hub. Agents eventually installed surveillance
equipment in a suspect?s office, but that tactic was ?risky,? the
official said, and the delay ?prevented the interception of pertinent

Moreover, according to several other officials, after the failed Times
Square bombing in May, investigators discovered that the suspect,
Faisal Shahzad, had been communicating with a service that lacked
prebuilt interception capacity. If he had aroused suspicion
beforehand, there would have been a delay before he could have been

To counter such problems, officials are coalescing around several of
the proposal?s likely requirements:

¶ Communications services that encrypt messages must have a way to
unscramble them.

¶ Foreign-based providers that do business inside the United States
must install a domestic office capable of performing intercepts.

¶ Developers of software that enables peer-to-peer communication must
redesign their service to allow interception.

Providers that failed to comply would face fines or some other
penalty. But the proposal is likely to direct companies to come up
with their own way to meet the mandates. Writing any statute in
?technologically neutral? terms would also help prevent it from
becoming obsolete, officials said.

Even with such a law, some gaps could remain. It is not clear how it
could compel compliance by overseas services that do no domestic
business, or from a ?freeware? application developed by volunteers.

In their battle with Research in Motion, countries like Dubai have
sought leverage by threatening to block BlackBerry data from their
networks. But Ms. Caproni said the F.B.I. did not support filtering
the Internet in the United States.

Still, even a proposal that consists only of a legal mandate is likely
to be controversial, said Michael A. Sussmann, a former Justice
Department lawyer who advises communications providers.

?It would be an enormous change for newly covered companies,? he said.
?Implementation would be a huge technology and security headache, and
the investigative burden and costs will shift to providers.?

Several privacy and technology advocates argued that requiring
interception capabilities would create holes that would inevitably be
exploited by hackers.

Steven M. Bellovin, a Columbia University computer science professor,
pointed to an episode in Greece: In 2005, it was discovered that
hackers had taken advantage of a legally mandated wiretap function to
spy on top officials? phones, including the prime minister?s.

?I think it?s a disaster waiting to happen,? he said. ?If they start
building in all these back doors, they will be exploited.?

Susan Landau, a Radcliffe Institute of Advanced Study fellow and
former Sun Microsystems engineer, argued that the proposal would raise
costly impediments to innovation by small startups.

?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,? she said.

Moreover, providers of services featuring user-to-user encryption are
likely to object to watering it down. Similarly, in the late 1990s,
encryption makers fought off a proposal to require them to include a
back door enabling wiretapping, arguing it would cripple their
products in the global market.

But law enforcement officials rejected such arguments. They said
including an interception capability from the start was less likely to
inadvertently create security holes than retrofitting it after
receiving a wiretap order.

They also noted that critics predicted that the 1994 law would impede
cellphone innovation, but that technology continued to improve. And
their envisioned decryption mandate is modest, they contended, because
service providers ? not the government ? would hold the key.

?No one should be promising their customers that they will thumb their
nose at a U.S. court order,? Ms. Caproni said. ?They can promise
strong encryption. They just need to figure out how they can provide
us plain text.?

A version of this article appeared in print on September 27, 2010, on
page A1 of the New York edition.

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