The Times ran a thoughtful editorial today noting that there were elements inside the Obama administration who were seeking sweeping new regulations that would make online communications platforms more easily tappable. As we’ve discussed, requiring “back doors” into everything from Facebook chat sessions to Skype calls and Blackberry enterprise email would be an enormously disruptive undertaking.
The editorial board of The Times understands this:
The problem is that the hub-and-spoke design of phone and broadband communication is very different from the decentralized design of the Internet – and even more so from peer-to-peer connections. If, as some experts say, requiring Internet providers to be able to unscramble encrypted messages or intercept any transmitted communication also calls for them to function like centralized carriers, the shift will reverse what made the Internet – and made it a fount of economic growth.
Why is such a giant, retrograde, cost-imposing, put-things-back-in-a-box-we-recognize change needed?: The Times suggests that we need public data about real barriers to the enforcement of wiretap orders online, rather than anecdotes from officials, in order to decide whether CALEA needs to be changed.
EFF has joined this question to action. Since May 2009, they’ve been asking for public records that would support the DOJ’s request for vastly expanded regulatory powers. They’re asking for records about something the FBI calls the “Going Dark Program” – money used to bolster the agency’s surveillance capabilities, and, apparently, the surveillance capabilities of communications companies. Starting in late September 2010, EFF began asking on an expedited basis for records reflecting problems that the agency was encountering in executing wiretaps online.
So far, nothing has been produced. The FBI hasn’t met legal deadlines for responding to FOIA requests, and EFF likely suspects that no information will be forthcoming. EFF has asked the federal court in the Northern District of California to order the Department of Justice to disclose the requested records as quickly as possible. Once Congress has this information, it will better be able to decide whether there’s a problem that requires such a gigantic legal change.
The next issue will be a continued focus on transparency. FBI Director Mueller has asserted (speech starts at 3:26) that the agency is getting plenty of cooperation from some vendors – presumably the big ones. This is the case around the world, as name-brand online platforms make (or plan to make) one-off deals with national authorities to provide easy access to data.
Such a privatized approach to the privacy of communications clearly has major implications for human rights. In this country, we don’t have very useful public records of subpoenas or warrants issued for emails or documents stored in the cloud, or for wiretaps of prospective communications. In other countries, these processes themselves may not exist. Meanwhile, companies will keep cooperating. It’s in their interest to do so.
But the very first step is to take a serious look at what DOJ is asking for, and find out why they’re asking. That’s what EFF is doing, and that’s what today’s editorial supports.