Please, Sir. I want some more. (surveillance powers, that is)

Apr 9, 2013

The FBI claims that it finds it "difficult and resource-consuming" to spy, in real time, on cloud-based comms services such as Dropbox, Gmail, Google Voice and others. The G Men can, of course, monitor such communication after it has taken place (subject to what civil libertarians describe as some "very lax" strictures and civilian oversight) but now they want the power to monitor cloud-and other Internet based comms in real-time.

Speaking in Washington DC at a recent meeting of the American Bar Association, the FBI's general counsel, Andrew Weissmann, went on the record to say that the Bureau urgently needs the new powers, otherwise, he claims dramatically, the FBI will "go dark".

This means the inexorable rise in the availability, popularity and constant of Internet communications via the likes of email and social networks is making the agency's efforts to eavesdrop on conversations and other messages as they are actually taking place.

Under the terms of the Electronic Communications Privacy Act, the FBI already has the power to obtain archived copies of emails, but it cannot, as yet, intercept them in real-time.

At the moment a piece of legislation passed in 1994, the Communications Assistance for Law Enforcement Act (CALEA), permits US government agencies to compel ISPs and telcos to install surveillance equipment in their networks. However, because the Act just short of 20 years old, its provisions do not cover the likes of email, cloud services and social media - they simply weren't around at the time the law was drafted.

According to Mr. Weissmann, the FBI wants new surveillance powers over the "new" services as a "top priority this year" because "such communications are being used for criminal conversations.” As indeed were telephone calls and telegraph services in the past. They have always been there, the needles in the haystack of electronic noise. But does that mean that, these days, everyone using comms technologies in a democratic society should potentially be subject to covert surveillance by the government? Evidently the FBI thinks so as as, no doubt, do other US law enforcement and security agencies.

Opponents to the FBI's lobbying for more eavesdropping rights point out that the agency already has a pretty hefty remit under extant legislation. For example, it can use a so-called “Title III” order under the Wiretap Act to require email and social media service providers to provide “technical assistance necessary to accomplish the interception.” However, the FBI says this isn't enough because requiring “technical assistance” isn't the same as compelling them to “effectuate” a wiretap.

It was Andrew Weissmann's predecessor as the FBI's general counsel, Valerie Caproni who first kicked-off the agency's current campaign to have its powers extended. Back in 2011 she stated that Title III orders "do not provide the Bureau with an effective lever by which to encourage [telcos and service] providers to set up live surveillance quickly and efficiently.

According to Andrew Weissmann, the FBI is working currently with “members of the intelligence community” to draft a proposal for new legislation. That is all he will say about it, apart from "This is a very hard thing to talk about publicly.” Which is a great way of letting yourself off the democratic hook.

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