Proposal to Broaden Wiretap Authority - Fordham Intellectual Property, Media & Entertainment Law Journal
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Proposal to Broaden Wiretap Authority

Proposal to Broaden Wiretap Authority

At the end of last year, several U.S. officials and newspapers, such as the New York Times, indicated that the Obama administration has planned to submit legislation to Congress that would make it easier for law enforcement officials to wiretap the Internet.  The bill would require all communication service providers to have the capability to intercept and unscramble messages in order to more promptly comply with wiretap orders.

Currently, communication service providers are not covered by the Communication Assistance to Law Enforcement Act, which requires phone and broadband networks to build interception capabilities into their networks so they are wiretap-ready.  Thus, although communication service providers must comply with wiretap orders, many do not have prebuilt interception capacity and wait until they are served with the order before developing these capabilities.  The development of these interception capabilities is costly and can delay interception efforts.

Audio tools like Wiretap Anywhere make it easy to record and intercept conversations off the internet.

The mandate will likely require peer-to-peer communication services to rework their networks to allow interception as well as communication services to have the capability to unscramble encrypted messages.  Law enforcement officials argue that these measures are necessary in order to conduct anti-terrorism and other criminal investigations and surveillances in order to protect national security.  Valerie E. Caproni, general council for the F.B.I., says that the mandate is completely lawful and would not increase existing authority.

Many critics have expressed concern that the initiatives will implicate privacy and technology protections and threaten innovation. Christopher Calabrese, Legislative Council for the American Civil Liberties Union, warned that the mandate “is a huge privacy invasion” and “will create even more security risks by mandating that our communications have a ‘backdoor’ for government use.”  Additionally, Michael A Sussmann, a former Justice Department lawyer, warned that “[i]mplementation would be a huge technology headache, and the investigative burden and costs will shift to providers.” We’ll have to see how this plays out.

Lauren Kaufman