The FBI thinks you should never have privacy

Can you imagine if the FBI had been around when the construction industry was as new as the internet is? We would have been reading news items like this:

The FBI is asking for industry support for new legislation that would require construction contractors to keep copies of the keys to all locks they install in new construction or remodeled properties, and to make those copies available to law enforcement officials serving search warrants.

“The shift to solid, well-fitted doors and stronger locks has made it harder for police to enter people’s homes and businesses to search for criminals and contraband,” said FBI director Jack Lint. “This new law would address the ‘Locking Up’ issue that is increasingly impeding law enforcement.”

I thought of this when I read that the FBI wants to force websites to make it easier for them to spy on us.

The FBI general counsel’s office has drafted a proposed law that the bureau claims is the best solution: requiring that social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail alter their code to ensure their products are wiretap-friendly.

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. The Federal Communications Commission extended CALEA in 2004 to apply to broadband networks.

In February 2011, CNET was the first to report that then-FBI general counsel Valerie Caproni was planning to warn Congress of what the bureau calls its “Going Dark” problem, meaning that its surveillance capabilities may diminish as technology advances. 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.

So what? Why should new technologies be forced to imitate the physical properties of the old systems just for the convenience of law enforcement? Because that’s how it used to be? If we didn’t already have a non-secure system — if we had invented secure encrypted digital systems before analog telephony — no one would seriously think that this was a good idea. What makes the FBI think that just because they’ve had it easy for a few decades, they’re entitled to the same level of surveillance for all eternity? What they call “Going Dark,” I call a return to privacy in America.

And how come this never works in reverse? If the FBI really wants to return to the way things were before all this technological change, why aren’t they giving up their thermal imaging gear, GPS trackers, and computerized records?

Subsentio, a Colorado-based company that sells CALEA compliance products and worked with the Justice Department when it asked the FCC to extend CALEA seven years ago, says the FBI’s draft legislation was prepared with the compliance costs of Internet companies in mind.In a statement to CNET, Subsentio President Steve Bock said that the measure provides a “safe harbor” for Internet companies as long as the interception techniques are “‘good enough’ solutions approved by the attorney general.”

Big shock, the compliance industry supports more regulations. Subsentio will sell more product if these changes pass. Naturally the president of the company can’t wait to get on his knees for the FBI. And “good enough” to be approved by the Attorney General means that these companies will have to do whatever they’re told by bums like Janet Reno, John Ashcroft, and Eric Holder.

A representative for the FBI told CNET today that: “(There are) significant challenges posed to the FBI in the accomplishment of our diverse mission. These include those that result from the advent of rapidly changing technology. A growing gap exists between the statutory authority of law enforcement to intercept electronic communications pursuant to court order and our practical ability to intercept those communications. The FBI believes that if this gap continues to grow, there is a very real risk of the government ‘going dark,’ resulting in an increased risk to national security and public safety.”

It never seems to occur to law enforcement folks that they are a potential threat to security and safety too.

Stewart Baker, a partner at Steptoe and Johnson who is the former assistant secretary for policy at Homeland Security, said the FBI has “faced difficulty getting its legislative proposals through an administration staffed in large part by people who lived through the CALEA and crypto fights of the Clinton administration, and who are jaundiced about law enforcement regulation of technology — overly jaundiced, in my view.”

Letting law enforcement regulate technology is an idiotic idea. The law and order crowd are classic old-school conservatives: They hate everything new, everything that lets people do things they can’t control.

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.

Huh? Expanding CALEA would give the FBI the power to force communications providers to do things they don’t currently have to do. Of course it’s an expansion of power.

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 do not use the public telephone network.

Talk about the camel getting a nose in the tent! Once you let them get in a little with the regular telecom systems, they start using that as a justification for spying on everything, first the major web sites, then peer-to-peer. I prefer to take the argument in the opposite direction: There’s no point in requiring wiretap back doors for existing communications tools when the bad guys will always be able to switch to something else. We might as well repeal CALEA altogether.

But industry groups aren’t necessarily going to roll over without a fight. TechAmerica, a trade association that includes representatives of HP, eBay, IBM, Qualcomm, and other tech companies on its board of directors, has been lobbying against a CALEA expansion. Such a law would “represent a sea change in government surveillance law, imposing significant compliance costs on both traditional (think local exchange carriers) and nontraditional (think social media) communications companies,” TechAmerica said in e-mail today.

Ross Schulman, public policy and regulatory counsel at the Computer and Communications Industry Association, adds: “New methods of communication should not be subject to a government green light before they can be used.”

Amen to that.

(Hat tip: Peter Suderman at Reason)

About Mark:
Mark is a computer programmer, website builder, photographer, and sometimes journalist in Chicago, where he also writes the long-running Windypundit blog.
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