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Will We Let the FBI Micromanage Our Software?

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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May 7, 2012

CNET’s Declan McCullaugh reported Friday that the CALEA II proposal is alive and well within the Justice Department. This is a proposal to radically expand the Communications Assistance for Law Enforcement Act, a law passed in the 1990s that requires the phone companies to affirmatively design their systems so that law enforcement can eavesdrop on them. The new proposal would expand that requirement from the telephone system to computer programs such as those that run social-networking sites, VoIP, instant messaging, and webmail.

It was first reported in September 2010 that the FBI was pushing for this legislation internally, but there also seemed to be opposition within the administration, and nothing ever came of it, so we were beginning to think it was dead.

Such proposals threaten privacy, security, and innovation, and haven’t been demonstrated to be necessary. If and when the administration actually proposes something, the ACLU will have a lot more to say about it (than we already have). Glenn Greenwald also discusses this report here. At this point I just want to make two observations.

First, the heart of the issue is a growing attitude among law enforcement that there ought to be a presumption that citizens’ communications be susceptible to eavesdropping. There is no reason for such a presumption. If the government has a warrant and happens to have a means of eavesdropping, that is one thing. But to rearrange the world to guarantee eavesdropping is something else entirely. Unfortunately, we started down that road with the passage of CALEA—but we must not let that slope slip.

In colonial times, when our constitution was written, very few conversations could be overheard. Letters could be intercepted—but such correspondence was sometimes written in code to prevent such interception. With the invention of the telegraph and the telephone, many more conversations suddenly took place in ways other than face-to-face. It was not difficult to wiretap those facilties, and the authorities were presented with an opportunity to eavesdrop on many more citizen communications than ever before.

Today, as in colonial times, people may communicate privately by standing out in the middle of a field (some days it seems that will soon be the only way left to communicate privately). Should the FBI complain that they are “going dark” in their inability to overhear such conversations? How far must we warp our world for the rare cases when such eavesdropping is truly important? (The vast majority are carried out in service of the misguided war on drugs.)

Second, CALEA II as reported would cross a line when it comes to freedom on the internet. Today many other popular methods of communicating privately exist, from Twitter to Facebook to online games. In fact, any entrerpreneur sitting in a dorm room can write software that, installed on two computers, would allow their users to communicate with each other privately. Any such software might well include encryption to protect users’ privacy. And, any such software might (as Facebook, Twitter, Skype and other have) spread around the world until many people are using it to communicate.

Should the FBI be able to dictate what kind of code runs on your computer? That crosses a line that we have never crossed before. As misguided as CALEA was, it is one thing to set rules for the heavily regulated common carrier telecommunications network. It is quite another to tell me that I cannot run a certain program on my computer or transmit certain patterns of bits over the Internet because the FBI does not approve.

Let us hope that this proposal dies an early death within the administration.

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