Wiretapping the Internet: the expansion of the Communications Assistance to Law Enforcement Act to extend government surveillance.

• Author: Hibbard, Christa M.
• Position: Company overview

1. INTRODUCTION II. HISTORY OF WIRETAP AND SURVEILLANCE LAW III. PROPOSED EXPANSION OF CALEA IV. GROWTH OF THE INTERNET AND THE RELATIONSHIP BETWEEN THE GOVERNMENT AND THE PRIVATE SECTOR ONLINE COMPANIES A. History of the Relationship B. Cooperation of the FBI and Online Companies C. Compliance with CALEA D. Implications of a Strong Relationship Between the Government and the Private Sector V. CONCERNS OF INTERNET WIRETAPS IN THE FACE OF AN EXPANDING CALEA A. Design of the Internet B. Fourth Amendment Privacy Concerns C. Threat to the First Amendment Freedom of Speech D. Economic and Innovation Concerns. E. International Impact VI. REASONS GIVEN FOR EXPANDING CALEA A. Within Scope of Government Authority B. Government Interest in Preventing and Investigating Crime C. Current Retrofit Services Delay Ability to Wiretap VII. MORE INFORMATION REQUIRED TO BALANCE COMPETING INTERESTS ADEQUATELY A. Competing Interests B. Lack of Information C. Moving Forward VIII. CONCLUSION I. INTRODUCTION

   As the Internet has become more prevalent over the past couple of decades, misuse of the Internet for criminal and terrorist activity has led American government officials to endeavor to improve their ability to deal with these threats. Criminal use of the Internet to take advantage of the government's limitations and circumvent traditional government phone wiretaps has inspired the Obama administration to create a task force led by officials from the Justice and Commerce Departments, the Federal Bureau of Investigation ("FBI"), and other agencies." The goal of the task force is to expand the Communications Assistance to Law Enforcement Act ("CALEA"), which was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards "so that they can begin conducting surveillance of a target immediately after being presented with a court order." (2)

   President Obama's task force intends to add provisions to CALEA that would allow the government 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." (3) The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and to word processing software that allows communication through Internet access. (4)

   CALEA was first passed to require telephone and broadband companies to construct services that enable efficient and prompt compliance with wiretap orders. While the FCC has previously interpreted this 1994 version of CALEA to require compliance by communications over the Internet using Voice-over-Internet-Protocol ("VoIP") technology, (5) the expansion to all Internet communications would have significant consequences for the use of the Internet as we know it. The unique architecture of the Internet lends it to particular vulnerabilities with the consequence that an expansion of CALEA to all Internet communications would create problems regarding the innovative nature of the Internet as well as national security concerns. The proposed expansion of CALEA also raises free speech and privacy issues.

   This Note will examine the competing interests related to expanding CALEA and will weigh the potential benefits and consequences of CALEA to conclude that substantially more information is needed to justify a change. Part II will give a background of wiretap and surveillance law, and establish the role of CALEA within the scope of this field of law. Part III will lay out the expansion proposal and the proposed requirements, in addition to discussing the reaction of online companies to the expansion thus far.

   Part IV will discuss the relationship between the government and online companies. While the Internet was created by the U.S. government, this section will outline how once the Internet was beginning to be utilized by the public and other countries, the government allowed industry to take over primary control, while the government took a regulatory role. The status of this relationship has changed more recently, with a growing partnership between the government and the private sector. This section will discuss the potential implications of that development.

   Part V will look at many of the arguments made against the expansion by opponents to the proposal. This examination will demonstrate that there are interests of the American public at stake. The CALEA expansion would likely have a negative impact on the use of the Internet as a means of communication, and would create the danger of chilling public speech. Another interest that will be discussed is the danger to Fourth Amendment privacy rights of Americans due to both the propensity of Internet users to reveal more information about themselves online, and the potential vulnerabilities of CALEA software, which could create the potential for access by third parties. The design of the Internet will also be discussed to demonstrate that the suggested change in CALEA would have implications for the Internet as it is currently structured, as well as national security concerns. This section will then discuss the potential economic and innovative issues which could arise, indicating that a change in the law would potentially have a negative impact on booming Internet industries. Part V will conclude by discussing the impact that the proposal would have internationally, both through the danger of any newly-developed software's use by foreign governments and the impact of the requirements of the law on foreign companies.

   Part VI of this Note will then examine the counterarguments to these concerns, outlining the government interests behind the CALEA proposal. The government's argument that the expansion of the Act would not correlate to an expansion of government authority will first be examined, followed by a discussion of the government interest in preventing and investigating crime. The last section of Part VI will respond to national security arguments made against the proposal, arguing that current services to implement wiretaps retroactively have a greater likelihood of creating security holes for hackers than the proposed CALEA software.

   Part VII will establish that in spite of relevant government interests advanced by the CALEA proposal, there is not enough information about why the government truly needs the services to justify the dangers that could arise. The potential costs are too great for the government to have free reign with expanding CALEA, and the FBI should either continue to use their powers under current wiretap laws to the best of their abilities, or give substantially more information to the American public about why such a change would be warranted. Even if the government presents further information about why such measures are needed, it is unlikely that the government interests will be found to outweigh the disadvantages to the American public. The FBI would then be recommended to proceed to the best of its abilities while utilizing its current capabilities.

2. HISTORY OF WIRETAP AND SURVEILLANCE LAW

   Although the government has used wiretaps for law enforcement for over a century, Congress first regulated their use in the 1968 Omnibus Crime Control and Safe Streets Act. (6) Title III of this Act permitted and closely regulated use of wiretaps for investigations of criminal activity, and Congress regulated government wiretapping in international investigations through the 1978 Foreign Intelligence Surveillance Act. (7) Over time, as technology has advanced, the law has similarly needed to change to stay relevant.

   CALEA was passed in 1994 to require telephone and broadband companies to specifically construct their services to efficiently comply with wiretap orders. The passing of CALEA represented a departure from previous wiretap law due to the government's use of its authority to establish the precise way that telephone networks should be designed. As discussed further in Part IV, the legislation that ruled how communications providers would develop their networks demonstrates a growing relationship between the state and the private sector with regard to the Internet and wiretapping. According to Sun Microsystems Laboratories engineer Susan Landau, before CALEA, the government had "left the design of wiretap technology to the people who developed and ran the communications technology," rather than instructing communications providers on the specifics of how to configure their systems. (10)

   As the market for traditional telephone systems began to decline with the advent of VoIP communications, the FBI found that it was unable to wiretap significant quantities of American telephonic communications and petitioned the FCC to interpret CALEA in a way which would expand it to include the authority of the government to regulate VoIP communications as well. (11) In 2004, the FCC complied with the FBI's request and controversially extended CALEA's power. (12) Much of the debate surrounding the FCC's decision to broaden CALEA had to do with the legitimacy of the FCC's power to interpret CALEA beyond what many believed the legislative intent entailed. (13) Critics had also questioned the FCC decision in light of the substantial threats that requiring wiretap capability would impose on innovation, privacy, and security. (14) Many of the concerns aired in response to the FCC's 2004 decision are still substantially relevant and apply fully to the potential expansion of CALEA to all Internet communications.

   The controversy surrounding the FCC's decision led to a D.C. Circuit Court case, which upheld the FCC's authority to interpret CALEA to include VoIP. (15) When the FCC interpreted CALEA to include VoIP, the rest of Internet communications were intentionally...