Civil Liberties

Feds Want To Fine Online Companies Unless They Make Eavesdropping Easier


Reason 24/7

Some tech companies apparently aren't jumping high enough, fast enough — or at all — when the government orders them to allow access to users' communications, and a federal task force wants to start levying hefty fines unless they fall into line. Interestingly, the Washington Post write-up initially makes it sound as if these companies are heroically (or nefariously, if you're a bit of a boot-licker) telling the authorities to get stuffed in defense of users' privacy. Maybe some are doing that, but as it turns out, the feds are annoyed that companies like Google and Facebook haven't designed eavesdropping into their technology as a capability, and are often simply unable to comply with snooping orders.

From Washington Post:

A government task force is preparing legislation that would pressure companies such as Face­book and Google to enable law enforcement officials to intercept online communications as they occur, according to current and former U.S. officials familiar with the effort.

Driven by FBI concerns that it is unable to tap the Internet communications of terrorists and other criminals, the task force's proposal would penalize companies that failed to heed wiretap orders — court authorizations for the government to intercept suspects' communications. …

There is currently no way to wiretap some of these communications methods easily, and companies effectively have been able to avoid complying with court orders. While the companies argue that they have no means to facilitate the wiretap, the government, in turn, has no desire to enter into what could be a drawn-out contempt proceeding.

Under the draft proposal, a court could levy a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders, according to persons who spoke on the condition of anonymity to discuss internal deliberations. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.

Instead of setting rules that dictate how the wiretap capability must be built, the proposal would let companies develop the solutions as long as those solutions yielded the needed data. That flexibility was seen as inevitable by those crafting the proposal, given the range of technology companies that might receive wiretap orders. Smaller companies would be exempt from the fines.

The controversial Communications Assistance for Law Enforcement Act (CALEA) requires telecommunications companies to make their systems accessible to law enforcement for the purposes of wiretapping, but many online companies aren't covered. Adding an "enforcement provision" to existing wiretap law is apparently considered more "politically palatable" than fighting the political battle necessary to extend CALEA. So, tech companies wouldn't be required to redesign their systems for wiretapping (as telecoms are under CALEA), they would just be penalized if they don't. Uh huh.

Says Center for Democracy & Technology President Leslie Harris:

"This is essentially a 'wiretap tax' that will stunt innovation. What the FBI is proposing sounds benign, but it comes with such onerous penalties that it would force developers to seek pre-approval from the FBI. No one is going to want to face fines that double every day, so they will go to the FBI and work it out in advance, diverting resources, slowing innovation, and resulting in less secure products."

Hall adds that it won't even catch the savvy criminals in a world where communications servers can be based anywhere:

"The sad irony is that this is likely to be ineffective. Building a communications tool today is a homework project for undergraduates. So much is based on open source and can be readily customized. Criminals and other bad actors will simply use homemade communication services based offshore, making them even harder to monitor."

But, at least the feebs will have access to your Facebook status.

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