No New Surveillance Powers For The War On Drugs

At two hearings over the past month, including one yesterday, senior officials from the Department of Justice asked Congress to significantly expand its ability to monitor and investigate the online communications of Americans.

Law enforcement officials claim that it is too difficult to snoop on users of modern services like Skype, Blackberry, Facebook and Google, as the companies have not built wiretap capabilities into their services. The Department of Justice would also like wireless and residential Internet Service Providers to keep records that would make it easier to determine after-the-fact which particular customer visited specific websites.

These officials argue that technology companies should be required to build new surveillance capabilities in order to more effectively investigate child pornographers and terrorists. This is a politically savvy argument, as no member of Congress will want to risk appearing weak on terrorism or child pornography.

The reality is that most law enforcement surveillance powers are used in support of the war on drugs, not to investigate terrorists or pedophiles. As such, Congress should first demand reliable statistics on law enforcement’s existing Internet surveillance activities before even considering the FBI’s request for more powers.

The American public may be willing to give up their privacy and civil liberties in order to actually prevent terrorism and the sexual exploitation of children. This deal is far less attractive if the new surveillance powers will instead be used to to continue a failed prohibition opposed by millions of Americans.

Statistics are useful

Each year, federal and state law enforcement agencies obtain thousands of court orders that allow them to secretly wiretap the telephones of American citizens. We know this because Congress requires annual reports regarding the use of these surveillance powers.

The first documented instances of law enforcement wiretaps were used to investigate bootleggers during the prohibition. Decades later, as the wiretap reports confirm, the vast majority of intercepts are used to enforce our modern day prohibition: the war on drugs. For example, of the 2,376 wiretap orders issued in 2009, 86% (2,046) were obtained as part of narcotics investigations.

Similarly, of the 763 “sneak and peek” search warrants obtained in 2009, 474 were obtained in investigations of drugs, and only 3 were used in investigations of terrorism. These surveillance orders allow government agents to search a home without telling the owner or resident until weeks or months later. Law enforcement agencies were given this authority as part of the Patriot Act, after the Department of Justice claimed that the powers were necessary to allow “law enforcement to conduct investigations without tipping off terrorists.” However, a report published by the Administrative Office of the Courts in 2009 revealed that the powers are primarily used to investigate drugs, not terrorism.

Unfortunately, while accurate statistics exist for wiretaps, and for the sneak and peek authority granted as part of the Patriot Act, we are largely in the dark regarding most of the tens of thousands of requests made each year to phone companies and Internet service providers. There are no statistics that document law enforcement requests for email, instant messaging, social network profiles, search engine history, or geographic location information from mobile phones.

Not only do we have no way of knowing the total number of requests made by law enforcement officers each year, but we also do not know what kinds of crimes they are investigating. Instead, all we have are unverifiable anecdotes from law enforcement officials, who selectively reveal them in order to justify their push for increased surveillance powers.

If the statements of law enforcement officials are to be believed, most of their online investigations involve child pornography. However, the published statistics for other forms of surveillance suggest that they are likely in support of the war on drugs. The only way to be sure would be for Congress to require the collection and publication of statistics covering law enforcement agencies’ surveillance of Internet applications and communications. As Senator Leahy noted more than 10 years ago, surveillance statistics serve as a “more reliable basis than anecdotal evidence on which to assess law enforcement needs and make sensible policy in this area.”

Rather than granting the Department of Justice the sweeping new surveillance powers it seeks, Congress should first seek and obtain detailed reports on the use of modern surveillance techniques. There is no need to rush the passage of new authority; especially since, as the debate over the renewal of the Patriot Act has clearly demonstrated, rolling back powers is much tougher than granting new ones.

CALEA: It is about the money

Cash Rules Everything Around Me
C.R.E.A.M.
Get the money
Dollar, dollar bill y'all
-- Wu Tang Clan

Tomorrow, the House Judiciary Committee will hold a hearing on the topic of CALEA, and the FBI's desire to get backdoors in modern services like Skype, Google, Facebook and RIM's Blackberry. The mass adoption of these services, the FBI claims, is leading to a situation where law enforcement agencies have "gone dark," and lost the ability to intercept the communications of suspects in real time.

This is not the first time that the FBI has come to Congress to ask for increased surveillance powers -- The FBI spent a good part of the 90s sending people to Capitol Hill, asking for backdoors in encryption.

What does surprise me is that the tech companies are nowhere to be seen, and have not deployed anyone publicly to fight this proposal. Compare this, for a moment, to the cloud computing privacy hearing held by the same House Committee last September, where Google, Microsoft, Amazon, Rackspace and Salesforce all sent executives to argue for stronger privacy laws.

Last year, those companies were vocally asking for stronger privacy laws that would make it more difficult for law enforcement agencies to access their customers' data. Now, these same firms are being asked to put backdoors in their services, and make it easier for the government to snoop on their customers. Are they fighting this? No.

Instead, they are hiding behind industry-funded advocacy groups, like the Center for Democracy and Technology, which has written a softly-worded statement of concern.

Google, Microsoft and Facebook have excellent, well-funded teams of lobbyists. The fact that they are not appearing at the hearing tomorrow and have not issued any public statements about the topic is a clear sign that these companies are doing everything possible to keep a low profile on this issue.

If I had to guess why, I suspect that they don't want to do anything to upset Congress, particularly now that topic of commercial privacy is very much on the legislative agenda. If they put their foot down on CALEA, they may find themselves with few friends when members start considering bills to limit behavioral advertising.

Priority #1: Gotta get paid

When Congress passed CALEA in 1994, it set aside $500 million to help with the cost of designing and deploying wiretap capable networking equipment. Unfortunately, as 2008 DOJ Inspector General report (pdf) revealed, it was not possible to tell if the money was well-spent, since neither the telecoms nor the switch makers were willing to share the necessary information.

With that in mind, this bullet point from CDT's statement of concern caught my eye:

"Avoid unfunded mandates: The costs of implementing any new proposals should be borne by the government."

While tech companies aren't particularly crazy about adding new snooping capabilities into their services, they are even less excited about having to eat the financial cost of developing and deploying those backdoors.

Even though CDT seems to think otherwise, there are strong policy advantages to sticking companies with these costs. The most important one being that Google and Facebook are far more likely to take a strong position against CALEA II if they are going to get stuck with the check. If these firms know they are going to get millions of dollars for upfront surveillance development, they are far less likely to fight, and will instead spend more of their time haggling over the details, and in particular, lobbying for a larger payout with less oversight.

Charging the government for individual requests is good

"When I can follow the money, I know how much of something is being consumed - how many wiretaps, how many pen registers, how many customer records. Couple that with reporting, and at least you have the opportunity to look at and know about what is going on.
-- Albert Gidari Jr., Keynote Address: Companies Caught in the Middle, 41 U.S.F. L. Rev. 535, Spring 2007.

This is not to say that I am opposed to companies making the government pay for the assistance they are legally required to provide. I just think that the payment should be associated with specific investigations and requests, rather than a huge cash payment for developing and deploying surveillance capabilities.

The reason for this is that invoices for surveillance serve as a fantastic paper trail documenting the scope and scale of government snooping. Through Freedom of Information Act requests, I have obtained invoices from both Google and Yahoo, which detailed the kinds of requests they were getting, and helped me to discover that the US Marshals have essentially granted themselves a new surveillance power that is not in the law.

Charging for law enforcement assistance also tends to limit their use to only those records necessary. As Al Gidari told the House Judiciary Committee in testimony last year:

When records are "free," such as with phone records, law enforcement over consumes with abandon. Pen register print outs, for example, are served daily on carriers without regard to whether the prior day's output sought the same records. Phone record subpoenas often cover years rather than shorter, more relevant time periods. But when service providers charge for extracting data, such as log file searches, law enforcement requests are more tailored.

It is for these reasons that I have pleaded with attorneys at Microsoft and Facebook to start charging the government. Even though the law permits them to do so, both firms currently deliver user data to law enforcement agencies for free.

Recoup the high costs of surveillance technology though high per-request fees

A 2006 report from the DOJ Inspector General revealed that:

One carrier informed us that most of the costs it billed to law enforcement are for overtime and recovery of capitalized hardware and software costs. These representatives stated that capital costs are the major costs incurred by a carrier, and that these costs are entirely proper for carriers to recover.

For once, I actually agree with the carriers. If they had to spend millions of dollars deploying CALEA compliant intercept equipment, then it is only reasonable that they recoup it by charging $3500 for a 30 day wiretap (as Cox communications does).

The problem with charging $3500 for a wiretap, is that the police will complain, as this money comes out of their budget. The same 2006 Inspector General report confirmed this:

Law enforcement's biggest complaint regarding CALEA is the relatively high fees charged by carriers to conduct electronic surveillance. A traditional wiretap costs law enforcement approximately $250. However, a wiretap with CALEA features costs law enforcement approximately $2,200 according to law enforcement officials and carrier representatives we interviewed. A law enforcement official noted that, "[w]ith CALEA, the carriers do less work but it costs approximately 10 times as much to do a CALEA-compliant tap versus a traditional tap."

If Congress is considering spending another $500 million on CALEA II (and I hope it doesn't), it should give it out in grants to state and local law enforcement agencies. Give them each a pool of money, and let them decide how they want to spend it. If they want to use it to hire more officers, or buy body armor, that is their choice. If they want to pay for CALEA II wiretaps provided by Google, Facebook and Skype, well, that is their choice too. In the real world, there are opportunity costs associated with every purchase, and the police should have to experience these too. Surveillance should be expensive -- that is the best way to make sure these powers are not overused, or abused. Unfortunately, at just $25 for an individual user's account, Google and Yahoo are not charging nearly enough.

CALEA and encryption

Reading through Charlie Savage's New York Times piece yesterday, which arguably marks the beginning of the 2nd crypto wars, one might get the impression that law enforcement officials are merely seeking to tweak the law, in order to maintain the existing status quo:

"We're talking about lawfully authorized intercepts," said Valerie E. Caproni, general counsel for the Federal Bureau of Investigation. "We're not talking expanding authority. We're talking about preserving our ability to execute our existing authority in order to protect the public safety and national security."

...

To counter such problems, officials are coalescing around several of the proposal’s likely requirements:

* Communications services that encrypt messages must have a way to unscramble them.

I think it is reasonable to assume that very few people have read the text of the Communications Assistance for Law Enforcement Act (CALEA), and so it is quite reasonable that the average layperson (or even interested technologist) might assume that existing US law has nothing to say about encryption, since, after all, Skype didn't exist when CALEA was passed in 1994. That is incorrect -- not only does the law speak about encryption, but it specifically protects the right of companies to build strong encryption for which only the customer has the decryption key into their products.

47 USC 1002(b)(3):

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.

Also from the CALEA legislative history:

Finally, telecommunications carriers have no responsibility to decrypt encrypted communications that are the subject of court-ordered wiretaps, unless the carrier provided the encryption and can decrypt it. This obligation is consistent with the obligation to furnish all necessary assistance under 18 U.S.C. Section 2518(4). Nothing in this paragraph would prohibit a carrier from deploying an encryption service for which it does not retain the ability to decrypt communications for law enforcement access

...


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. To the contrary, section 2602 protects the right to use encryption.”

If the FBI and other law enforcement agencies get their way, they will not be tweaking existing law to deal with new technologies, but fundamentally changing how the government regulates technology.