The FBI is considering a legislative proposal that could extend its legal ability to intercept communications in technologies that have resisted wiretapping.

The bureau increasingly decries what it says is a mounting gap between its traditional ability to wiretap communications and the ability of providers utilizing new technologies to provide real-time intercepts, what the FBI terms "going dark."

New legislation "is something that is actively being discussed within the administration and I'm optimistic that we will have a proposal in the near future," FBI General Counsel Valerie Caproni told a congressional panel Feb. 17. She testified before the House Judiciary Committee crime, terrorism and homeland security subcommittee.

Congress required the private sector communications, through the Communications Assistance for Law Enforcement Act of 1994, to build into their networks surveillance capabilities. Since then, law enforcement agencies "have increasingly found themselves serving wiretap orders on providers that are not covered by CALEA and therefore under no preexisting legal obligation to design into their systems a wiretap capability," Caproni said.

The problem, she added, is not limited to new forms of communication but also well-established methods whose provider has made changes to its network without adjusting the intercept ability. The FBI does not want CALEA to be "expanded to cover all of the Internet," Caproni said.

During the hearing, Susan Landau, a fellow at the Radcliffe Institute for Advanced Study at Harvard University, cautioned that intercept solutions themselves pose a security risk to the United States.

"In light of the cyber exploitations we've been seeing nationally the last half dozen years, that's not a risk we can afford," she said, referring to the case when more than 100 mobile phones on the Vodafone Greece network belonging to government officials were illegally wiretapped. The Ericsson switches used by Vodafone Greece had a CALEA-type capability built into them. The Greek company had the capability turned off, but a still-unknown party hacked the switches to activate them.

Telecom Italia was also discovered in 2006 to have had its network compromised for a decade; more than 5,000 people had their phones tapped by a criminal organization that included a former military intelligence official and a Telecom Italia chief of security.

"It's unlikely that surveillance can be built in secretly," Landau said, adding that law enforcement should depend less on the "one size fits all" solution of CALEA wiretaps.

"I agree that with new communications technologies there's a need for law enforcement access to legally authorized surveillance. But let's not do it in a way that makes things more dangerous and insecure," she added.

For more:
- go to the hearing webpage

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