FBI 'looking at' law making Web sites wiretap-ready, director says

Director Robert Mueller says FBI needs to be able to "capture communications" of people under surveillance, but declines to elaborate on renewed lobbying effort reported by CNET two weeks ago.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
FBI Director Robert Mueller tells Senate panel that agents need to "be able to obtain those communications," in this file photo.
FBI Director Robert Mueller tells Senate panel that agents need to "be able to obtain those communications," in this file photo. Anne Broache/CNET

FBI Director Robert Mueller confirmed that the bureau has renewed its push for a new Internet wiretapping law, which CNET reported two weeks ago.

In an appearance this week on Capitol Hill, Mueller downplayed privacy concerns, saying the FBI's wiretap proposals -- social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail are the primary targets -- would still require a court to be involved.

We want to "be able to obtain those communications," Mueller said on Wednesday. "What we're looking at is some form of legislation that will assure that when we get the appropriate court order that those individuals -- individual companies are served with that order do have the capability and the capacity to respond to that order."

'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.

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.

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 e-mail boasts that the bureau's plan has "gotten attention" from industry, but "we need to strengthen the business case on this."

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."

The FBI believes that the historic shift in communication from telephones to the Internet has made it far more difficult for agents to wiretap Americans suspected of illegal activities, which it refers to as the "Going Dark" problem. Its solution: a proposed law that would require Internet companies including Apple, Microsoft, Facebook, Yahoo, and Google, to build in back doors for government surveillance.

Mueller's remarks came in response to prodding from two senators, Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), who wanted him to elaborate on the new lobbying push reported by CNET.

"We have been waiting patiently for the administration to put forth a proposal with necessary fixes to ensure the 'Going Dark' problem is addressed," Grassley said. "I want the director to give us the status on this proposal (and) when the administration plans to send something up to the Hill."

"Should I be expecting a specific legislative proposal from the FBI or the administration in the near future?" Leahy asked. He said he has not yet seen the draft bill, saying the "administration is not sending it up here."

Mueller didn't answer their question directly about timing, instead saying that the goal of the legislation is "to capture communications of a particular individual" under surveillance. An FBI spokesman said, in response to questions this afternoon, that "we cannot comment on pending legislation."

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. From the FBI's perspective, expanding CALEA to cover VoIP, Web e-mail, and social networks isn't expanding wiretapping law: If a court order is required today, one will be required tomorrow as well. Rather, it's making sure that a wiretap is guaranteed to produce results.

Mueller is not asking companies to support the bureau's CALEA expansion, but instead is asking them not to oppose it. The bureau is also "asking what can go in it to minimize impacts," one participant in the closed-door 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.

In February 2011, CNET was the first to report that then-FBI general counsel Valerie Caproni was planning to warn Congress of the "Going Dark" problem. 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.

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 last month. Microsoft (which owns Skype and Hotmail) says its lobbyists are following the topic because it's "an area of ongoing interest to us."

Representatives of the FBI's Electronic Surveillance Technology Section in Chantilly, Va., began quietly lobbying the FCC nearly a decade ago to force broadband providers to provide more-efficient, standardized surveillance facilities, which CNET reported at the time. The FCC approved that requirement a year later, sweeping in Internet phone companies that tie into the existing telecommunications system. It was upheld in 2006 by a federal appeals court.

But the FCC never granted the FBI's request to rewrite CALEA to cover instant messaging and VoIP programs that are not "managed" -- meaning peer-to-peer programs like Apple's FaceTime, iChat/AIM, Gmail's video chat, and Xbox Live's in-game chat that use the Internet, not the public telephone network.