Blog of Rights

The Fourth Amendment is Going Dark

By Sandra Fulton, ACLU Washington Legislative Office at 12:40pm

In 1994 the FBI decided it needed a surveillance system built into the telephone network to enable it to listen to any conversation with the flip of a switch. Congress obliged by passing the Communication Assistance to Law Enforcement Act (CALEA), forcing the telecoms to rebuild their networks to be "wiretap ready." Seventeen years later, law enforcement is asking to expand CALEA to include the Internet, claiming that its investigative abilities are "going dark" because people are increasingly communicating online.

The parameters of this proposal are very unclear, but some scary ideas have been bandied around.

Expanding CALEA would force companies to re-engineer all of their communications software to have a surveillance back door that could be easily accessed by law enforcement. This back door would apply to every form of peer-to-peer communication; from email, to social networking, to video games. The government would have to get a search warrant to utilize the back door, but imagine a world where the government required every home to be built with cameras and microphones pre-installed. Even knowing they could only be "tapped" after probable cause was established, how comfortable would you be?

Then there is the message this would send to the rest of the world. If this comes to pass, other governments — including repressive regimes like China and Iran — could follow suit, justifiably claiming they were just following our lead. We have seen the role the Internet can play in human rights movements, such as the Green Revolution and the recent demonstrations in Egypt. These would not have been possible if the Internet did not allow for private and anonymous communication.

Nor is it clear this is necessary. Current law provides more than sufficient means for law enforcement to demand assistance of anyone — from a landlord to an internet service provider — in executing a wiretap order. Any company that refused to comply could be held in contempt of court.

Applying CALEA to online communications would be a sweeping expansion of law enforcement surveillance powers that is unnecessary and chills our First and Fourth Amendment rights. Many of the civil liberties benefits of the Internet — ability to read provocative materials, associate with non-mainstream groups, and voice dissenting opinions — are based on the assumption of practical anonymity. If a surveillance structure is built into the Internet, individuals will lose the freedom and openness that has allowed the Internet to thrive.

Tell Congress to oppose any effort to make the Internet wiretap ready.

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