From: "Baker, Stewart" <SBaker at steptoe.com> To: "'farber at cis.upenn.edu'" <farber at cis.upenn.edu> cc: "Albertazzie, Sally" <SAlbertazzie at steptoe.com>
Fox News recently reported that the FBI has a plan to change the architecture of the Internet, centralizing it and providing "a technical backdoor to the networks of Internet service providers." Like many others, I thought this was big news, and rather surprising. Until I realized that the reporter only cited one source and that it was, well, me. Fox News's claims go beyond the facts I provided to her, and beyond any that I know about.
To be clear, I believe that the FBI is at work on an initiative to make Internet communications, indeed any packet data communications, more susceptible to intercept and more productive of non-content data about communications -- the sort of "pen register" data that was expressly approved for Internet communications in the recent antiterrorism bill. This initiative will have architectural implications for packet data communications systems. The FBI is likely to press providers of those services to centralize communications in nodes where interception will be more convenient, and it is likely to call on packet data services to build systems that provide more information about the communications of their subscribers.
The vehicle for this initiative is CALEA, the Communications Assistance for Law Enforcement Act, a 1994 enactment that actually requires telecom carriers to redesign their networks to provide better wiretap capabilities.The act is supposed to exempt information services, but the vagueness of that provision has encouraged the FBI to expand its mandate into packet-data communications. The Bureau is now preparing a general CALEA proposal for all packet-data systems. While I have not seen it, the Bureau's past interventions into packet-data and other communications architecture have had two characteristics -- they have sought more centralization in order to simplify interception and they have asked providers to generate new data messages about their subscribers' activities -- messages that are of value only to law enforcement.
There are real legal and policy questions that should be raised about this effort. In my view, it goes beyond what Congress intended in 1994. And the implications for Internet users and technologies deserve to be debated. But making these points, as I did with Fox News, is not the same as saying that the FBI has a firm plan to centralize the Internet and build back doors into all ISP networks. If Fox News wants to break that story, it will need a source other than me.
Stewart Baker Steptoe & Johnson LLP 1330 Connecticut Avenue, N.W. Washington, DC 20036
For archives see: http://www.interesting-people.org/archives/interesting-people/