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How the FBI's Favorite Surveillance Bill Will Affect You

The FBI's CALEA II proposal awaits President Obama's approval.
May 31, 2013, 4:15pm

In 1994, President Bill Clinton signed CALEA (Communications Assistance for Law Enforcement Act) into law. The goal: expand the government's ability to conduct electronic surveillance on American citizens. It dictated that telecommunications carriers (ISPs) and technology manufacturers build backdoors into their services and equipment. Now, almost twenty years later, as originally reported by The Washington Post, the FBI is lobbying for CALEA II. It wants more digital surveillance powers.

So how does CALEA II expand upon the digital surveillance powers granted in the 1994 bill?

The original proposal, first drafted in 2010, would have forced those internet communications services not covered under the original law (such as Google and Facebook) to build wiretapping capabilities into their services. The revised version of CALEA II, however, goes further. It would levy fines, starting in the tens of thousands of dollars, against those internet services not in compliance with the real-time back-door surveillance provision. Non-payment would result in the fines doubling.

How would this impact internet users? Well, if you happen to use Gmail, for instance, the FBI currently has to get a court order to force Google into allowing access to your email inbox. With CALEA II, on the other hand, Google would build a backdoor into your Gmail account, allowing real-time surveillance of your communications. Google could, of course, refuse to comply, and be fined. But the possibility for real-time government access is there nonetheless.

CALEA II would also give the FBI access to cloud services like Dropbox, as well as online communications services like Skype.

“The importance to us is pretty clear,” said Andrew Weissmann, the FBI’s general counsel, at a March American Bar Association discussion on the subject. “We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’ Other countries have that. Most people assume that’s what you’re getting when you go to a court.”

Recall that during the Arab Spring, many Egyptian activists and rebels used Skype to communicate and organize their revolution. The Egyptian government responded in kind by surveilling the Skype accounts of rebels. American and other western media outlets put up a stink about the country's Orwellian digital surveillance. Now, the same thing could potentially happen here in the US, especially now that Microsoft, which owns Skype, has already admitted its compliance with wiretap orders.

The FBI might publicly state that CALEA II would be used to surveill terrorists, traffickers of child pornography, online pirates, and other criminals; but, surveillance won't be limited to these areas. American activists, dissidents, or anyone else who shares an opinion outside the status quo, might find their online communications surveilled if the proposal becomes law.

As with any surveillance bill, it's never just about the explicitly-stated surveillance objectives, but its unmentioned or unimaginable uses down the road. How will future administrations and bureaucrats use CALEA II twenty years from now? It's anyone's guess.

This revised version of the proposal is headed to President Obama's for approval. If he gives his consent to CALEA II, he will submit it to Congress, where it will likely garner both enthusiastic support and spirited opposition. But, there is a chance that CALEA II could be dead-on-arrival.

The Center for Technology and Democracy's senior counsel, Greg Nojeim, characterized the proposal as a “non-starter that would drive innovators overseas and cost American jobs.” And, of course, if Google and Facebook create back-doors in their end-to-end encrypted services, government surveillance won't be the only worry. CALEA II will effectively hand malicious hackers easy access to user data.

Americans have a right to secure communications. Clearly, the FBI doesn't see it at that way. Rather, it  believes that its already significant surveillance powers are just not enough.

With Obama's disgraceful track record on surveillance and civil liberties, there is a good chance he will agreed to the FBI's demands.