Law enforcement technologyFBI: Lawmakers should mandate surveillance “backdoors” in apps, operating systems

On 16 October, FBI director James Comey said in a speech at the Brookings Institution that the agency was pushing lawmakers to mandate surveillance functions in apps, operating systems, and networks, arguing that privacy and encryption prevent or disrupt some of the agency’s investigations. According to Comey, new privacy features implemented by Google and Apple in the wake of the Snowden revelations, automatically encrypt user communication and data, making it difficult for law enforcement to gather evidence and connect links among suspected criminals and terrorists.

“Technology has become the tool of choice for some very dangerous people,” Comey said. “Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem…Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”

In the past, law enforcement simply needed to identify a phone or device, and its service provider, then, with an approval of a court order, evidence could be gathered via electronic surveillance. Today, users may switch between multiple communication devices — and modes including text, video conference, chat, e-mail, and voice — to conceal their conversations and data. Government Technology notes that since tech companies are not compelled to develop and install interception methods in their devices, they often are not capable of complying with court orders. “What this means is that an order from a judge to monitor a suspect’s communication may amount to nothing more than a piece of paper,” Comey said.

The 1994 Communications Assistance for Law Enforcement Act (CALEA) governs interception and wiretapping procedures, but it is outdated and the FBI wants it updated to mandate all software and hardware providers to develop interception methods into their products and services. Privacy advocates predict it is unlikely that Congress will pass the FBI’s proposed mandate in a post-Edward Snowden climate, in which the public objects the NSA’s mass surveillance programs.

The Center for Democracy & Technology reports that on 5 November, the Justice Department proposed to change Rule 41 of the Federal Rules of Criminal Procedure, which outlines the procedures judges must follow to issue warrants. The proposed changes would allow law enforcement to seek a warrant from any district in cases where a targeted computer or device’s location is “concealed through technological means,” like Internet browser Tor, which anonymizes a user’s location.

In response to law enforcement’s requests for more surveillance powers, major tech firms, including Google, Microsoft, Apple, and Twitter, have launched campaigns to preserve consumer privacy. “We understand that governments have a duty to protect their citizens. But this summer’s revelations highlighted the urgent need to reform government surveillance practices worldwide,” the companies wrote in a 2013 letter to President Barack Obama. “The balance in many countries has tipped too far in favor of the state and away from the rights of the individual — rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for change.”