FBI Pursuing Real-Time Gmail Spying Powers as “Top
Priority” for 2013
By Ryan Gallagher | Posted Tuesday, March 26, 2013, at
4:58 PM
For now, law enforcement has trouble monitoring Gmail
communications in real time
Despite the pervasiveness of law enforcement surveillance
of digital communication, the FBI still has a difficult time monitoring Gmail,
Google Voice, and Dropbox in real time. But that may change soon, because the
bureau says it has made gaining more powers to wiretap all forms of Internet
conversation and cloud storage a “top priority” this year.
Last week, during a talk for the American Bar Association
in Washington, D.C., FBI general counsel Andrew Weissmann discussed some of the
pressing surveillance and national security issues facing the bureau. He gave a
few updates on the FBI’s efforts to address what it calls the “going dark”
problem—how the rise in popularity of email and social networks has stifled its
ability to monitor communications as they are being transmitted. It’s no secret
that under the Electronic Communications Privacy Act, the feds can easily
obtain archive copies of emails. When it comes to spying on emails or Gchat in
real time, however, it’s a different story.
That’s because a 1994 surveillance law called the
Communications Assistance for Law Enforcement Act only allows the government to
force Internet providers and phone companies to install surveillance equipment
within their networks. But it doesn’t cover email, cloud services, or online
chat providers like Skype. Weissmann said that the FBI wants the power to
mandate real-time surveillance of everything from Dropbox and online games
(“the chat feature in Scrabble”) to Gmail and Google Voice. “Those
communications are being used for criminal conversations,” he said.
While it is true that CALEA can only be used to compel
Internet and phone providers to build in surveillance capabilities into their
networks, the feds do have some existing powers to request surveillance of
other services. Authorities can use a “Title III” order under the “Wiretap Act”
to ask email and online chat providers furnish the government with “technical
assistance necessary to accomplish the interception.” However, the FBI claims
this is not sufficient because mandating that providers help with “technical
assistance” is not the same thing as forcing them to “effectuate” a wiretap. In
2011, then-FBI general counsel Valerie Caproni—Weissmann’s predecessor—stated
that Title III orders did not provide the bureau with an "effective
lever" to "encourage providers" to set up live surveillance
quickly and efficiently. In other words, the FBI believes it doesn’t have enough
power under current legislation to strong-arm companies into providing
real-time wiretaps of communications.
Because Gmail is sent between a user’s computer and
Google’s servers using SSL encryption, for instance, the FBI can’t intercept it
as it is flowing across networks and relies on the company to provide it with
access. Google spokesman Chris Gaither hinted that it is already possible for
the company to set up live surveillance under some circumstances. “CALEA
doesn't apply to Gmail but an order under the Wiretap Act may,” Gaither told me
in an email. “At some point we may expand our transparency report to cover this
topic in more depth, but until then I'm not able to provide additional
information.”
Either way, the FBI is not happy with the current
arrangement and is on a crusade for more surveillance authority. According to
Weissmann, the bureau is working with “members of intelligence community” to
craft a proposal for new Internet spy powers as “a top priority this year.”
Citing security concerns, he declined to reveal any specifics. “It's a very
hard thing to talk about publicly,” he said, though acknowledged that “it's
something that there should be a public debate about.”
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