Director Robert Mueller says FBI needs to be able to "capture communications" of people in accordance with surveillance, however declines to elaborate on renewed lobbying effort reported by CNET two weeks ago.
FBI Robert Mueller tells Senate panel that agents need to "be able to obtain those communications," in this file photo.
FBI Director Robert Mueller confirmed that the bureau has renewed its push for a new Internet wiretapping law, which CNET reported two weeks ago.
Appearance this week on Capitol Hill
In an appearance this week on Capitol Hill, Mueller downplayed privacy concerns, saying the FBI's wiretap proposals -- social-networking Web sites and providers of VoIP (Voice over Internet Protocol), instant messaging, and Web e-mail are the primary targets -- would all in all require a court to be involved.
We want to "be able to obtain those communications," Mueller said on Wednesday. "What we're looking at is some form of legislation that will assure that when we get the appropriate court order that those individuals -- individual companies are served with that order do have the capability and the capacity to respond to that order."
November 2008: FBI Assistant Director Marcus Thomas, who oversees the Quantico-based Operational Research Division, prepares briefing for President-Elect Obama's transition team.
February 2009: FBI memo to all field offices asks for anecdotal information about cases where "investigations have been negatively impacted" by lack of data retention or Internet interception.
April 2009: FBI general counsel's office reports that the bureau's Data Interception Innovation Unit has "compiled a list of FISA dockets... that the FBI has been unable to fully implement." That's a reference to telecom companies that are already covered by the FCC's expansion of CALEA.
May 2009: FBI e-mail boasts that the bureau's plan has "gotten attention" from industry, however "we need to strengthen the business case on this."
September 2010: FBI staff operations specialist in its Counterterrorism Division sends e-mail on difficulties in "obtaining information from Internet Service Providers and social-networking sites."
The FBI believes that the historic shift in communication from telephones to the Internet has made it far more difficult for agents to wiretap Americans suspected of illegal activities, which it refers to as the "Going Dark" problem. Its solution: a proposed law that would require Internet companies including Apple, Microsoft, Facebook, Yahoo, and Google, to build in back doors for government surveillance.
Mueller didn't answer their question directly about timing, instead saying that the goal of the legislation is "to capture communications of a particular individual" pursuant to this agreement surveillance. An FBI spokesman said, in response to questions this afternoon, that "we cannot comment on pending legislation."
The FBI's proposal
The FBI's proposal would amend a 1994 law, called the Communications Assistance for Law Enforcement Act, or CALEA, that currently applies only to telecommunications providers, not Web companies. From the FBI's perspective, expanding CALEA to cover VoIP, Web e-mail, and social networks isn't expanding wiretapping law: If a court order is required today, one will be required tomorrow as then. Or rather, it's making sure that a wiretap is guaranteed to produce results.
Mueller is not asking companies to support the bureau's CALEA expansion, however instead is asking them not to oppose it. The bureau is as well "asking what can go in it to minimize impacts," one participant in the closed-door discussions says. That included a scheduled trip this month to the West Coast -- which was subsequently postponed -- to meet with Internet companies' CEOs and top lawyers.
In February 2011, CNET was the first to report that at the time-FBI general counsel Valerie Caproni was planning to warn Congress of the "Going Dark" problem. Caproni singled out "Web-based e-mail, social-networking sites, and peer-to-peer communications" as problems that have left the FBI "increasingly unable" to conduct the same kind of wiretapping it could in the past.
A furthermore expansion of CALEA is unlikely to be applauded by tech companies, their clients, or privacy groups. Apple is currently lobbying on the topic, according to disclosure documents filed with Congress last month. Microsoft says its lobbyists are following the topic because it's "an area of ongoing interest to us."
Representatives of the FBI's Electronic Surveillance Innovation Section in Chantilly, Va., began quietly lobbying the FCC near a decade ago to force broadband providers to provide more-efficient, standardized surveillance facilities, which CNET reported at that time. The FCC approved that requirement a year later, sweeping in Internet phone companies that tie into the existing telecommunications system. It was upheld in 2006 by a federal appeals court.
But the FCC never granted the FBI's request to rewrite CALEA to cover instant messaging and VoIP programs that are not "managed" -- meaning peer-to-peer programs like Apple's FaceTime, iChat/AIM, Gmail's video chat, andXbox Live's in-game chat that use the Internet, not the public telephone network.
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