FBI Pursuing Real-Time Gmail Spying Powers as “Top Priority” for 2013

[Eugen Leitl]

http://www.slate.com/blogs/future_tense/2013/03/26/andrew_weissmann_fbi_wants_real_time_gmail_dropbox_spying_power.html

FBI Pursuing Real-Time Gmail Spying Powers as bTop Priorityb for 2013

By Ryan Gallagher | Posted Tuesday, March 26, 2013, at 4:58 PM

For now, law enforcement has trouble monitoring Gmail communications in real
time

Image courtesy Google

Despite the pervasiveness of law enforcement surveillance of digital
communication, the FBI still has a difficult time monitoring Gmail, Google
Voice, and Dropbox in real time. But that may change soon, because the bureau
says it has made gaining more powers to wiretap all forms of Internet
conversation and cloud storage a btop priorityb this year.

Last week, during a talk for the American Bar Association in Washington,
D.C., FBI general counsel Andrew Weissmann discussed some of the pressing
surveillance and national security issues facing the bureau. He gave a few
updates on the FBIbs efforts to address what it calls the bgoing darkb
problembhow the rise in popularity of email and social networks has stifled
its ability to monitor communications as they are being transmitted. Itbs no
secret that under the Electronic Communications Privacy Act, the feds can
easily obtain archive copies of emails. When it comes to spying on emails or
Gchat in real time, however, itbs a different story.

Thatbs because a 1994 surveillance law called the Communications Assistance
for Law Enforcement Act only allows the government to force Internet
providers and phone companies to install surveillance equipment within their
networks. But it doesnbt cover email, cloud services, or online chat
providers like Skype. Weissmann said that the FBI wants the power to mandate
real-time surveillance of everything from Dropbox and online games (bthe chat
feature in Scrabbleb) to Gmail and Google Voice. bThose communications are
being used for criminal conversations,b he said.

While it is true that CALEA can only be used to compel Internet and phone
providers to build in surveillance capabilities into their networks, the feds
do have some existing powers to request surveillance of other services.
Authorities can use a bTitle IIIb order under the bWiretap Actb to ask email
and online chat providers furnish the government with btechnical assistance
necessary to accomplish the interception.b However, the FBI claims this is
not sufficient because mandating that providers help with btechnical
assistanceb is not the same thing as forcing them to beffectuateb a wiretap.
In 2011, then-FBI general counsel Valerie CapronibWeissmannbs
predecessorbstated that Title III orders did not provide the bureau with an
"effective lever" to "encourage providers" to set up live surveillance
quickly and efficiently. In other words, the FBI believes it doesnbt have
enough power under current legislation to strong-arm companies into providing
real-time wiretaps of communications.

Because Gmail is sent between a userbs computer and Googlebs servers using
SSL encryption, for instance, the FBI canbt intercept it as it is flowing
across networks and relies on the company to provide it with access. Google
spokesman Chris Gaither hinted that it is already possible for the company to
set up live surveillance under some circumstances. bCALEA doesn't apply to
Gmail but an order under the Wiretap Act may,b Gaither told me in an email.
bAt some point we may expand our transparency report to cover this topic in
more depth, but until then I'm not able to provide additional information.b

Either way, the FBI is not happy with the current arrangement and is on a
crusade for more surveillance authority. According to Weissmann, the bureau
is working with bmembers of intelligence communityb to craft a proposal for
new Internet spy powers as ba top priority this year.b Citing security
concerns, he declined to reveal any specifics. bIt's a very hard thing to
talk about publicly,b he said, though acknowledged that bit's something that
there should be a public debate about.b