There has been much media coverage on the NSA. But there is another agency worth examining in the context of privacy infringement. Over the past few years, the FBI has been pressuring Congress to pass legislation requiring Internet companies including Microsoft, Facebook, Yahoo and Google to give it access to users’ data.
This is a result of the large shift communication from telephones to online methods. The FBI claims that the government is unable to obtain surveillance data which poses a threat to their abilities. Valerie Caproni, the general counsel of the FBI, gave a statement to a House Judiciary Subcommittee last year that this is necessary since “on a regular basis the government is unable to obtain communication related data even when authorized by a court to do so.” This gap in capabilities has been titled the “going dark” problem. On June 19, FBI Director Robert Mueller listed the Going Dark Initiative as a priority at the “Oversight of the Federal Bureau of Investigation” hearing before the Senate Judiciary Committee.
Currently, the FBI is pursuing this change through the proposed legislation building off of the Communications Assistance to Law Enforcement Act of 1994 (CALEA). CALEA was originally enacted to allow law enforcement officials to tap a traditional phone after getting approval from a judge. The FBI wants to work through CALEA II to “expand wiretap design laws broadly to Internet services, including voice over Internet protocol (VoIP) services and other peer-to-peer tools.” CALEA II is criticized by a group of technologists as it could cause thieves and foreign agents a backdoor to access this data as well.
Some email providers have taken a stand after the 2010 U.S. v. Warshak ruling. Google, Microsoft, Yahoo, and Facebook argue that the fourth Amendment mandates warrants for email searches. Microsoft released a statement that it would adhere to their “commitments as a member of the Global Network Initiative. The company stated that it is an “important responsibility” to “respect human rights and the principles of free expression and privacy.”
Chris Gaither, a Google spokesman said “the fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure. Law enforcement officials need a search warrant to enter your house and seize letters from your filing cabinet. The same protections should apply to email and online documents.” Christina Pearson, a spokeswoman for Hotmail, said that company requires a warrant before providing customer content to police unless there is risk to life or serious injury. A problem with the companies basing their policy on this decision is that the Supreme Court has not addressed this case. As a result, the decision only binds police in the court’s jurisdiction of Tennessee, Ohio, Michigan, and Kentucky.
If CALEA II is passed, then the FBI will have broader access to Internet data by way of the providers themselves. The U.S. v. Warshak decision will be rendered ineffective and users will not necessarily know that this data is being accessed.