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Shhh! The FBI's listening to your keystrokes

CNET News.com's Declan McCullagh notes that police have long been able to intercept Internet traffic. So why is the FBI pushing to expand its snooping purview?

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
3 min read
The FBI is trying to convince the government to mandate that providers of broadband, Internet telephony, and instant-messaging services build in backdoors for easy wiretapping.

That would constitute a sweeping expansion of police surveillance powers. Instead of asking Congress to approve the request, the FBI (along with the Department of Justice and the Drug Enforcement Administration) are pressing the Federal Communications Commission to move forward with minimal public input.

The three agencies argue that the 1994 Communications Assistance for Law Enforcement Act (CALEA) permits the FCC to rewire the Internet to suit the eavesdropping establishment.

The bureau's not talking, but it seems to be all about ease of eavesdropping.
"The importance and the urgency of this task cannot be overstated," their proposal says. "The ability of federal, state and local law enforcement to carry out critical electronic surveillance is being compromised today."

Unfortunately for the three agencies, CALEA, as it's written, would not grant the request.

When Congress was debating CALEA, then-FBI Director Louis Freeh reassured nervous senators that the law would be limited to telephone calls. (CALEA was intended to let police wiretap conversations flowing through then-novel services like cellular phones and three-way calling.)

"So what we are looking for is strictly telephone--what is said over a telephone?" Sen. Larry Pressler, R-S.D., asked.

Freeh replied: "That is the way I understand it. Yes, sir."

A House of Representatives committee report prepared in October 1994 is emphatic, saying CALEA's requirements "do not apply to information services such as electronic-mail services; or online services such as CompuServe, Prodigy, America Online or Mead Data (Central); or to Internet service providers."

Freeh, who has a sincere appreciation for wiretaps, had included Internet services in an earlier version of CALEA--but Congress didn't buy it. "Unlike the bills previously proposed by the FBI, this bill is limited to local and long-distance telephone companies, cellular and PCS providers, and other common carriers," Jerry Berman of the Electronic Frontier Foundation told Congress during a September 1994 hearing.

But now that more conversations are taking place through audio-based instant-messaging and voice over Internet Protocol (VoIP) services, the FBI and its allies are hoping that official Washington won't remember inconvenient details.

Louis Freeh reassured nervous senators that CALEA would be limited to telephone calls.
"These (wiretapping) problems are real, not hypothetical, and their impact on the ability of federal, state and local law enforcement to protect the public is growing with each passing day," the police agencies say in their proposal to the FCC.

It's true that the FBI has a difficult job to do, especially after Sept. 11, 2001, but is this proposal necessary, let alone wise?

Police have long been able to intercept Internet traffic. In 1996, then-Attorney General Janet Reno announced that investigators were successfully tapping the Internet without any problems. Even earlier, the Secret Service's "datataps" of Masters of Deception members helped bust that hacking group in 1992. Efficient Internet wiretapping is exactly what the FBI's Carnivore system, also called DCS1000, is designed to accomplish.

Then why is the FBI so emphatic? The bureau's not talking, but it seems to be all about ease of eavesdropping. Sorting through an intercepted stream of data is difficult and means that Carnivore must be updated to unpack the Session Initiation Protocol used to set up VoIP and instant-messaging conversations. Ordering those companies to include a backdoor for police is a lot easier.

It's worth noting that the FBI is hardly alone. The National Sheriffs' Association, the Police Executive Research Forum, the Illinois State Police and the Tennessee Bureau of Investigation have petitioned the FCC to grant the FBI's request.

They're even sharing talking points: Each of the groups included an identical paragraph in its letter to the FCC. "State and local law enforcement do not have the financial or personnel resources to develop costly ad hoc surveillance solutions for each new communications service," their letters said.

Maybe they're right. New technologies do present police with new headaches, and perhaps that justifies additional wiretapping powers. But the question will be: Who gets to make that call--elected representatives in Congress or well-meaning but unelected bureaucrats at the FCC?