Responding to announcements by Apple and Google that they would make customers’ smartphone and computer data more secure, in October 2014 the Federal Bureau of Investigation’s director James Comey announced that the Bureau was seeking to enlarge its data collection capabilities to include direct access to cell phones, tablets, and computers through an expansion of the 1994 Communications Assistance for Law Enforcement Act (CALEA). Comey told an audience at the Brookings Institution that expanding surveillance was in the interest of “public safety” to protect the nation against “potential terrorist threats.”
According to the FBI director, “Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public-safety problem.” Specifically, Comey called on Congress to update CALEA to mandate all software and hardware providers to build interception methods into their products and services.
The debate hinges on this language in CALEA: “A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.” Commenting on CALEA and Comey’s appeal, Cindy Cohn of the Electronic Frontier Foundation wrote, “Nothing in the bill is intended to limit or otherwise prevent the use of any type of encryption within the United States. Nor does the Committee intend this bill to be in any way a precursor to any kind of ban or limitation on encryption technology.”
In a Vice News article, published after the Apple and Google announcements, Cohn, Jeremy Gillula, and Seth Schoen anticipated FBI director Comey’s well-rehearsed arguments against encryption: “The common misconception among the hysteria is that this decision will put vital evidence outside the reach of law enforcement. But nothing in this encryption change will stop law enforcement from seeking a warrant for the contents of a phone, just as they seek warrants for the contents of a laptop or desktop computer.”
In late October, Ed Pilkington of the Guardian reported that the FBI also sought to expand its powers by proposing “operating changes related to rule 41 of the federal rules of criminal procedure, the terms under which the FBI is allowed to conduct searches under court-approved warrants.” Under existing wording, Pilkington wrote, warrants have to be highly focused on specific locations where suspected criminal activity is occurring and approved by judges located in that same district. The FBI proposed changing this rule so that a judge could issue a warrant permitting the FBI to hack any computer, no matter where it is located. The proposed change, Pilkington reported, would allow federal investigators to target computers that have been “anonymized,” meaning that their location has been hidden using tools such as Tor, which hide IP addresses and prevent browser fingerprinting to protect online users against tracking and surveillance.
“FBI Wants Congress to Mandate Backdoors in Tech Devices to Facilitate Surveillance,” Homeland Security News Wire, October 20, 2014, http://www.homelandsecuritynewswire.com/dr20141020-fbi-wants-congress-to-mandate-backdoors-in-tech-devices-to-facilitate-surveillance.
Cindy Cohn, Jeremy Gillula, and Seth Schoen, “What Default Phone Encryption Really Means For Law Enforcement,” Vice News, October 8, 2014, https://news.vice.com/article/what-default-phone-encryption-really-means-for-law-enforcement.
Ed Pilkington, “FBI Demands New Powers to Hack into Computers and Carry out Surveillance,” Guardian, October 29, 2014, http://www.theguardian.com/us-news/2014/oct/29/fbi-powers-hacking-computers-surveillance.
Student Researcher: Chelsea McCampbell (Indian River State College)
Faculty Evaluator: Elliot D. Cohen (Indian River State College)