Privacy & Information Security Law Blog

The Obama Administration is in the process of finalizing its review of a statutory electronic surveillance proposal initially developed by the FBI, and is expected to support the introduction of a modified version as legislation. The proposal addresses concerns raised by law enforcement and national security agencies regarding the widening gap between their legal authority to intercept real-time electronic communications pursuant to a court order, and the practical difficulties associated with actually intercepting those communications. According to the government, this gap increasingly prevents the agencies from collecting Internet-based phone calls, emails, chats, text messages and other communications of terrorists, spies, organized crime groups, child pornography distributors and other dangerous actors. The FBI refers to this as the “going dark” problem.

The Administration’s proposal is not expected to expand the government’s legal authority to conduct surveillance. Title 18 of the Federal Code and the Foreign Intelligence Surveillance Act already authorize the government to obtain a court order for surveillance of wire, oral or electronic communications of serious criminal suspects and national security threats. Instead, the proposal likely will create strong financial incentives for companies (in particular webmail providers and social networking sites) to develop the intercept capabilities necessary to comply with such orders in a timely fashion. Under current law, such providers are only required to provide the government with technical assistance.

In the early 1990s, the government confronted an earlier version of this problem when the telecommunications industry was developing and implementing new digital cell phone technology. In response, Congress enacted the Communications Assistance for Law Enforcement Act (“CALEA”) in 1994. CALEA required “telecommunications carriers” to develop network intercept capabilities to isolate and deliver communications to the government. Over the years, through interpretation by the Federal Communications Commission, CALEA has been expanded to apply to facilities-based broadband Internet access and certain types of Voice over Internet Protocol (“VoIP”) services. However, CALEA still does not cover Internet-based communication modalities such as webmail, social networking sites or peer-to-peer services. The Administration’s proposal is expected to create incentives for providers of such services to be able to comply with court orders for electronic surveillance.

The Administration’s review of the FBI proposal has sparked a heated, public debate between law enforcement and the technology industry over competing considerations regarding national security, the desire to minimize any effect on the competitiveness and innovation of U.S. companies, and concerns that mandating intercept capabilities will create new cybersecurity vulnerabilities. As reported in Bloomberg, Paul Tiao, partner at Hunton & Williams and former senior counselor for Cybersecurity and Technology to the FBI Director Robert Mueller, said, “The challenge is how to develop a system that enables the FBI and law enforcement agencies to protect the country without undermining the competitiveness and innovation of Internet entrepreneurs.”

An interagency task force within the Administration has been examining ways to modify the FBI proposal to address the “going dark” problem without undercutting innovation or creating cybersecurity risks. According to news accounts, the FBI originally proposed to broaden the scope of CALEA to cover Internet communications service providers. In response to concerns that this change would undercut innovation, the FBI modified its proposal to target only those companies that previously have been served with a court order or have been warned by the government that they are likely to be served with one. Under this proposal, companies that are not likely to be served with an order (e.g., start-ups that have only a small number of users) would not be required to devote engineering resources and time to developing a wiretap intercept capability.

We will provide updated information as this issue develops.