The FBI came to Congress Thursday to outline the problems law enforcement officials are increasingly facing in executing court ordered wiretaps, but did not offer a proposed solution for lawmakers to consider.
During a hearing before the House Judiciary Crime, Terrorism and Homeland Security Subcommittee, even critics acknowledged law enforcement faces a problem but there was much debate over what should be done to address it. Under the 1994 Communications Assistance for Law Enforcement Act, telecommunications companies are required to develop and deploy solutions to enable court-ordered wiretaps.
However, FBI General Counsel Valerie Caproni and Smithfield, Va., Police Chief Mark Marshall, who testified for the International Association of Police Chiefs, argued that they increasingly find that some telecom providers, particularly those not covered by CALEA, are unable to execute the requested wiretaps.
Caproni said law enforcement officers need to know that when they go to a communications provider with a wiretap order, that the provider will have the technical ability to carry out that court order. She said as technology has advanced, law enforcement has faced challenges getting even basic information sought by a pen register request, which seek the names and telephone numbers of suspected criminals.
When asked what specific changes the FBI is seeking, Caproni said the Obama administration is still developing its policy proposal and expects to release something soon. After the hearing, she said such a proposal may be done by spring.
The New York Times reported last fall that the administration would like all communications providers whether it's a telephone company or Internet messaging service to be able to comply with a wiretap order seeking real-time access to communications.
While the administration has yet to detail a specific proposal, some Democratic members of the committee and others said they worry that the FBI wants to require telecom providers to build back-door access into their networks.
"Forcing telecom providers to build backdoors into their systems will actually make us less safe and less secure," House Judiciary ranking member John Conyers, D-Mich., said.
But when Rep. Ben Quayle, R-Ariz., questioned whether law enforcement is seeking a back-door to the Internet, Caproni said the administration does not want "wiretapping of the Internet. We just want the ability to serve a targeted order on a targeted person on a provider."
Caproni said the FBI would like to see a solution that would get at the bulk of the cases law enforcement investigates and acknowledged that cases involving the use of encryption or other sophisticated means of securing communications will require more technical solutions. "The reality is that ... criminals are sometimes lazy and often resort to what is easy," she said.
But Susan Landau, a fellow at Harvard University's Radcliffe Institute for Advanced Study and a former Sun Microsystems engineer, said any requirement that seeks to build access into a communication system would be vulnerable to hackers who could exploit the same access that the law enforcement is seeking.
She added that a system that would allow bulk access is likely to be exploitable.
"I don't think we can possibly build into various communications infrastructures wiretapping solutions that allow bulk access" that isn't also easy to subvert, Landau said.
Instead, she said the FBI needs to invest more in research into intercepting new technologies as they are being deployed in the marketplace and to share the expertise it does have with local law enforcement officials who may not have the budgets to tackle new technologies on their own.