The Obama administration may seek to end a long-running debate over Internet wiretaps with proposed legislation that would enable law-enforcement agencies to tap into many types of Internet communications, U.S. officials with knowledge of the matter said.
The proposal is aimed at getting past the technical and legal obstacles that make it difficult for the FBI and other agencies with court orders to check so-called voice-over-Internet-protocol (VoIP) services such as those offered by Microsoft Corp’s Skype.
It would also apply to real-time chat services offered by Facebook, Google and others.
The FBI has long sought new policies that would enable it to eavesdrop on the Internet in the same way that it does on traditional telephone calls. But tech companies have fiercely opposed the idea, and it would likely face stiff opposition in Congress.
Though officials can seek court approval to wiretap almost anything, only traditional telecommunications carriers are required to make it easy.
“The real question here is VoIP,” said a former senior U.S. security official familiar with the debate. Microsoft and other VoIP providers have said they are exempt from existing law.
“The U.S. law, Communications Assistance for Law Enforcement Act, does not apply to any of Microsoft’s services, including Skype, as Microsoft is not a telecommunications carrier,” Microsoft wrote in a March corporate blog post.
Microsoft, Facebook and Google had no comment on the Obama administration’s draft proposal, which has been reported with varying details by The Washington Post, The New York Times and others.
As described to Reuters by U.S. officials and outsiders, the proposal would encompass VoIP, chat and other Internet communication services.
It remains unclear whether and how companies could be compelled to help police and intelligence agencies unscramble encrypted communications, in addition to providing access.
Al Gidari Jr., an attorney for Google and other tech companies, said he had been informed of the key provisions in the text and that providers would have to come up with a way to translate encrypted communications when required to do so by a judge, or else face escalating fines.
“It says if you offer a communication service it has to come with wiretapping capabilities or if not, you better be able to get that capability,” said Gidari.
SERIES OF COMPROMISES
FBI officials had originally sought a blanket requirement that Internet companies give authorized law enforcement officials the same kind of sweeping, turn-key access to their networks that phone companies do.
Tech companies, civil libertarians and some government officials argued that such a mandate would be impractical for smaller, innovative companies and that “back doors” created for law enforcement present serious security risks.
Over the past year, a task force convened by FBI Director Robert Mueller has offered a series of compromises, said technologist Joe Hall of the Center for Democracy & Technology.
The result would leave specific cases to judges overseeing warrant requests and give companies time to comply.
Evidently that has been enough to overcome objections at the Commerce Department and bring the matter to the White House, which is likely to back the plan, Gidari said. He predicted it would still face a tough fight in the divided Congress. A Commerce Department spokesman declined to comment.
U.S. officials said the legislative proposals are still being studied by an interagency group. It is unclear when the group might finalize it for presentation to President Barack Obama, they said.
Current and former officials said frustration over the difficulty of executing court-approved wiretaps in the Internet era has been building for years as new communications services become invisible to the carriers, often described as “going dark.”
“The Department of Justice is working with other agencies on a way forward that protects privacy of Americans, preserves corporate innovation, and provides the tools that our law enforcement and counterterrorism professionals require,” a White House statement said. “We have nothing new to announce on that process today.”
Dean Boyd, a spokesman for the Justice Department’s National Security Division, said that solutions “would not create any new surveillance authority.”
Retired General Michael Hayden, a former director of the CIA and the National Security Agency, said in an interview with Reuters that there should be no controversy over proposals to expand wiretap laws “to the extent that this allows the FBI to continue its lawful interception capabilities” with new technologies.
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