The Washington Post, citing “current and former U.S. officials familiar with the effort,” said that FBI is questing for more oversight when it comes to tracking the communications of criminals and suspected terrorists. As it is, wiretap methods can’t easily intercept internet communications, so officials have been at the mercy of service providers who can effectively avoid complying with requests because they aren’t covered under the controversial Communications Assistance for Law Enforcement Act (CALEA), which forces telecom companies to open up the kimono to law enforcement whenever asked.
The Feds are looking to change that. “The importance to us is pretty clear,” the Post quoted Andrew Weissmann, the FBI’s general counsel, saying last month at an American Bar Association discussion. “We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’ Other countries have that. Most people assume that’s what you’re getting when you go to a court.”
The draft proposal would empower a court to levy a series of escalating fines for non-compliance of wiretap orders, the source said. “A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines,” the paper noted. “After 90 days, fines that remain unpaid would double daily.”
The Center for Democracy and Technology was swift to condemn the plan, citing “unintended consequences.”
"A wiretapping mandate is a vulnerability mandate," said CDT senior staff technologist Joe Hall, in a statement. "The unintended consequences of this proposal are profound. At the very time when the nation is concerned about cybersecurity, the FBI proposal has the potential to make our communications less secure. Once you build a wiretap capability into products and services, the bad guys will find a way to use it."
He added that building a communications tool today is a “homework project for undergraduates.”
“So much is based on open source and can be readily customized,” he said “Criminals and other bad actors will simply use homemade communication services based offshore, making them even harder to monitor."
Meanwhile, CDT President Leslie Harris characterizes the CALEA extension as 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,” Leslie said. “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."