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National Security Draft For Fining Tech Company "Noncompliance" On Wiretapping

Posted by Unknown on from the only-criminals-use-pgp dept.

Jeremiah Cornelius writes with what looks to be part of CISPA III: Children of CISPA. From the article: "A government task force is preparing legislation that would pressure companies such as Facebook and Google to enable law enforcement officials to intercept online communications as they occur. ... 'The importance to us is pretty clear,' says Andrew Weissmann, the FBI's general counsel. '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.' Under the draft proposal, a court could levy a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders, according to persons who spoke on the condition of anonymity to discuss internal deliberations. 'This proposal is a non-starter that would drive innovators overseas and cost American jobs,' said Greg Nojeim, a senior counsel at the Center for Democracy and Technology. 'They might as well call it the Cyber Insecurity and Anti-Employment Act.'"

34 of 165 comments (clear)

  1. FBI's general counsel - having a laugh? by Fluffeh · · Score: 5, Insightful

    'We don't have the ability to go to court and say, "We need a court order to effectuate the intercept."...

    Can this guy be serious? The FBI doesn't have the ability to go to court and ask for a court order allowing them to listen in on conversations? Wow. Just utterly wow.

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    1. Re:FBI's general counsel - having a laugh? by nbauman · · Score: 5, Insightful

      'We don't have the ability to go to court and say, "We need a court order to effectuate the intercept."...

      I think he means, "Without a reasonable suspicion that a crime has been committed, we don't have the ability to go to court ..."

    2. Re:FBI's general counsel - having a laugh? by Mullen · · Score: 5, Insightful

      'We don't have the ability to go to court and say, "We need a court order to effectuate the intercept."...

      Can this guy be serious? The FBI doesn't have the ability to go to court and ask for a court order allowing them to listen in on conversations? Wow. Just utterly wow.

      That leads me to believe that the FBI just says this stuff so that a good chunk of the population, which does not understand the 4th Amendment or Court Orders in general, just buys into what they are saying, just so they can get it.

      How the FBI intercepts anything without a warrant or court order and the evidence is not thrown out of court, is beyond me.

      --
      Linux O Muerte!
    3. Re:FBI's general counsel - having a laugh? by Schmorgluck · · Score: 4, Insightful

      Yeah, I mean, seriously. Every wiretaping scandal in the past years in the USA is due to non-compliance with due process. Only the judiciary branch can suspend the fundamental rights of individuals. That's what due process is for.

      --
      There's nothing like $HOME
    4. Re:FBI's general counsel - having a laugh? by cdrudge · · Score: 5, Informative

      Actually, what I think he means is that even if a court grants an order, if the company does not track or have in place a method to monitor communications, then they could be fined in an escalating fashion.

      For instance, most ISPs track what address gets assigned to which customer via DHCP, but there have been some ISPs that either don't, or won't give that information out as it's not guaranteed accurate. The FBI could get a court order for the information, but if the ISP doesn't track it, they can just say they don't have it. With the draft, the court could levy a fine against the company that can't or won't implement the necessary logging of that information.

    5. Re:FBI's general counsel - having a laugh? by AK+Marc · · Score: 3, Informative

      Just having read TFS, it's about "interception" of communications "as they occur" not logging. The ISPs that were telcos are used to regulations, and all have LI in place. The start-ups didn't design the network from scratch with that in mind, and now they are fighting against regulations that are almost 100 years old, as if they are somehow "new" and a "surprise".

      --
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    6. Re:FBI's general counsel - having a laugh? by Jeremiah+Cornelius · · Score: 4, Insightful

      Of course.

      This is what is called "a limited hangout". They are already doing worse. This is to distract from that, and to send a discreet message to Google and Twitter that they function as outsourced, privatized intelligence bitches -- or else.

      --
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      Never been known to fail..."
    7. Re:FBI's general counsel - having a laugh? by BitterOak · · Score: 4, Insightful

      Why do they need a court order anyway? I thought the NSA was tcpdumping (or flushing) the entire flow of data on the Internet into their multi-bazzillion dollar datacenter. This is what happens when peoples jobs depend on the lawmaking industry.

      Problem is, companies like Facebook and Google (the two mentioned in the summary) have been migrating to SSL over that past few years. https is the default means for connecting to Facebook now, and it has been an option for Google now for a couple of years. The more people use SSL, the less these "tcpdumps" are effective. This is why the feds need to go to Google or Facebook to get this information. Interesting that Skype wasn't mentioned.

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    8. Re:FBI's general counsel - having a laugh? by Jane+Q.+Public · · Score: 5, Insightful

      "The police walk into your telephone switch room with a warrant, you let them listen. That's much much older than CALEA, that's only 20 years old."

      That's pretty irrelevant, though, because with telephones, tapping is pretty darned easy. But with other technologies it has NEVER been possible to "just listen in"... it just wasn't built in.

      That's not "refusal", it's simply not building something in a way that expressly caters to the police. And I don't give a damn. The police don't have a right to run the tech world.

      If they can't keep up, tough shit.

    9. Re:FBI's general counsel - having a laugh? by ganjadude · · Score: 5, Insightful

      the FBI's general counsel. '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.'

      Last time I checked, that was always a selling point of this country

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    10. Re:FBI's general counsel - having a laugh? by Jane+Q.+Public · · Score: 5, Interesting

      "Wiretap warrants require a lot more than just reasonable suspicion of a crime, though. "

      Absolutely. They require probable cause, which means real evidence. Of course, then there are the secret rooms the government built into some telco offices that simply siphon off data without anybody's knowledge or consent. Those are established fact... they are the whole reason Congress had to give telcos "immunity" for passing on the information. But as far as I know, there still isn't a law that allows the government to do it legally or constitutionally.

      "Wiretap laws were written to fit the idea that phone companies were simple carriers who would respect the integrity of customer's conversations, and since they didn't provide services themselves, people had a reasonable expectation of privacy."

      It's not that they didn't provide services. They didn't provide content. As the courts have ruled: there is a lesser standard of evidence needed for telephone records (who called who, and when, for example) than there is for the content of the telephone conversation (wiretap).

      But this brings up a good point. Telcos were (FCC Regulations) classified as Title II "Common Carriers". I.e., they provide the call service, but are strictly forbidden from intercepting or interfering with the content (conversation) without a warrant.

      It is quite possible to classify and regulate Cable companies and other ISPs as Title II Common Carriers. In fact, the FCC has wanted to do it for decades. But lobbyists got Congress to pass a law specifically excluding ISPs from Common Carrier status. That was one of the biggest mistakes of the last few decades.

      The solution: get Congress to remove the exclusion from ISPs. Then the vast majority of your privacy concerns go away, virtually overnight: it will then be prohibited for ISPs (or anybody, including usage trackers) from monitoring your activities without a warrant. Most of the major privacy and security concerns surrounding the Internet simply disappear.

      Sure, there will still be a few criminals doing it now and then. But criminals tapped (probably still tap) telephones, too. But the big problem -- government and corporations -- will be forced to leave it alone.

    11. Re:FBI's general counsel - having a laugh? by Anonymous Coward · · Score: 5, Informative

      Feds have had the ability to target SSL interception for years. Hell, even I had it it in a micro-corp I ran IT at four years ago.

      It's available as a commercial off-the-shelft product, and the law enforcement versions have the right connections to 'just work'. THink about that for a minute, and if you don't grok it, go install some SSL Observatory plugins.

      Doing /driftnet/ style SSL inspection is another problem altogether.

      And that tells you something about the types of intercepts they're having trouble with.

      They're not only mining shit when they don't even have a suspect in mind. They're so used to it that they want it to be illegal to make it difficult.

    12. Re:FBI's general counsel - having a laugh? by gnoshi · · Score: 4, Insightful

      Wait, just so I'm clear: you're saying that law enforcement has the ability to do one of the following:
      1. Generate an SSL certificate trusted by the browser (i.e. using a CA which is trusted by the browser) and 'MITM' the connection
      2. Use an SSL certificate which doesn't derive trust from a trusted CA, but prevent the browser from notifying the user that the certificate is invalid
      3. Has the actual certificate of the server the traffic to which they want to interept

      I guess they could also just be intercepting using untrusted certificates and hoping people ignore it - and most probably would.

    13. Re:FBI's general counsel - having a laugh? by rtb61 · · Score: 3, Insightful

      Sorry but targeting the end point of communications is just way to big a reach. What's to stop targeting of Banks, of online retailers, of typical business and how about the typical user. Once you attempt to force end point communications how do you write the law to limit how far that goes. The FBI wants the right to force everyone to become a spy on everyone else, sorry but fuck off. I remain honourable in my communications and spy and deceive for no one. This directly attacks the morals of any administrator of a system and attempts to force people against their will to deceive others.

      --
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    14. Re:FBI's general counsel - having a laugh? by drinkypoo · · Score: 4, Insightful

      It is quite possible to classify and regulate Cable companies and other ISPs as Title II Common Carriers. In fact, the FCC has wanted to do it for decades. But lobbyists got Congress to pass a law specifically excluding ISPs from Common Carrier status. That was one of the biggest mistakes of the last few decades.

      Sigh. How could you get everything else right, and get this so very wrong? There was no mistake involved. They did precisely what they wanted to do. They saw that all communications would eventually move to the internet, so they gave themselves broad-reaching control over it so that they could perform warrantless wiretapping and exert other forms of control as well.

      Make no mistake. Exclusing ISPs from common carrier status was not a mistake. It was a deliberate and evil decision specifically intended to support warrantless wiretapping and suppression of free speech.

      --
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    15. Re:FBI's general counsel - having a laugh? by Jane+Q.+Public · · Score: 3, Interesting

      "The police aren't running the tech world, they are just requesting that if you build something, that you allow warrants to be served against it."

      No. The difference is subtle, but it is still a difference and one that makes a definite difference.

      They are requesting that if you build something, you build it so that they can listen in. That's not the same as just "letting them" listen in when they have a warrant. You have to design your system so that they can.

  2. Rights are inconvenient by Anonymous Coward · · Score: 5, Insightful

    The 4th Amendment is getting in the way of FBI evidence-gathering.
    Good; that's what it's for.

    1. Re:Rights are inconvenient by Sarten-X · · Score: 4, Informative

      No, the fourth amendment is there to make sure that investigations are actually investigating something reasonable, rather than just harassing somebody the officers don't like.

      --
      You do not have a moral or legal right to do absolutely anything you want.
  3. No, by gatfirls · · Score: 4, Funny

    They're whining that companies don't drop everything end change their business model to a law enforcement intelligence and evidence gathering organization at their request. *This* is "big government"; part of your business model has to include an Open API to the government with a real time feed to help them do their jobs. It would be hilarious if their response could be to allow them to access the petabytes of information and find the needle in the universe of needles themselves.

  4. Amazing... by Darkness404 · · Score: 5, Insightful

    Its amazing that even with a court system that bends over backwards to help "law enforcement" agencies, they still think they need even more ways to violate basic rights.

    Its really amazing what has happened in the last 30 some odd years, to see a nation which used to truly be one of the freest in the world to now only paying lip service to freedoms. It used to be that if you wanted freedom, you came to the US, now its becoming increasingly obvious that if you value freedom, moving out of the US is the way to go.

    --
    Taxation is legalized theft, no more, no less.
    1. Re:Amazing... by Darkness404 · · Score: 3

      Chile is one of my options, fairly politically stable, modern, fairly free in practice, fairly cheap land, etc.

      Some of the non-EU European nations wouldn't be bad, a bit more expensive, but Andorra and Switzerland are potential options. Even though I don't really like crowds and big cities, Hong Kong and Singapore wouldn't be too terrible to live in, but again its more expensive.

      The real test though is how free countries are in practice, I mean, North Korea's constitution guarantees freedom of religion and expression, but it certainly isn't practiced. Similarly some countries may have more restrictive laws, but they are never enforced which provides more freedom in practice than a country with laws guaranteeing freedom but that restricts the practice of it.

      --
      Taxation is legalized theft, no more, no less.
    2. Re:Amazing... by Darkness404 · · Score: 4, Interesting

      Yeah, I certainly can believe it.

      There is a huge disconnect between how countries are portrayed in the media and how they actually are. I mean, who would have thought back in the "cold war days" that someone would flee France for Russia for economic freedom!

      What people think they believe in and what they actually believe are two separate things. I remember talking with my grandparents that they were scared that Obama would put the country under martial law, and then when Boston basically went under martial law, they praised the police and thought it was great what they were doing!

      --
      Taxation is legalized theft, no more, no less.
    3. Re:Amazing... by ClioCJS · · Score: 3, Insightful

      You really suck at history, huh? Boston has faced bombers MANY times in the past. MANY. For giggles, google how it relates to the molasses massacre that killed score(s)....

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    4. Re:Amazing... by Bing+Tsher+E · · Score: 3, Insightful

      "The situation is unprecedented, so unprecedented extreme measures need to be taken" is a standard ploy for those seeking to exercise extreme state power.

  5. Re:The bill is doomed to fail by Darkness404 · · Score: 3, Insightful

    Yeah, like the NDAA...

    The average American doesn't care about freedom anymore. Sure, they love the -illusion- of freedom, they love the -illusion- of their rights, but when it comes down to it, the average American is perfectly content and even applaud rights violations as long as they think that it won't apply to them. I mean, look at the outright celebration of essentially martial law in Boston, look at the lack of outrage against drone strikes, heck, even look at the widespread cheers for the horrible conditions at Guantanamo.

    The average voter doesn't care about freedom, as long as they have their welfare checks, government jobs, medicare and social security. As long as the media can maintain the illusion that the US is the freest country in the world, there won't be any outrage.

    --
    Taxation is legalized theft, no more, no less.
  6. translated by waddgodd · · Score: 3, Insightful

    "What's the point of a warrantless wiretap if we have to go to court to get compliance?"

    --
    Just because you're paranoid doesn't mean they aren't out to get you
  7. Meanwhile, a workplace death = $1000 by SuperBanana · · Score: 4, Insightful

    Just a reminder that OSHA and EPA fines, when they happen even under the most egregious circumstances, typically result in fines that barely break four digits.

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    1. Re:Meanwhile, a workplace death = $1000 by amiga3D · · Score: 3, Funny

      Gotta keep you priorities straight. Who cares about a few peasants?

  8. "Other countries have that". by sacrabos · · Score: 3, Insightful

    Yeah, many other countries don't have a 4th Amendment and other Constitutional protections and restrictions on government.

  9. I can't wait for Obama to take office by Anonymous Coward · · Score: 3, Insightful

    Then we'll see all this Bush/Cheney crap reversed.

  10. The FBI's testimony on "Going Dark" by blahblahwoofwoof · · Score: 5, Informative

    Respectfully submitted: Did anyone bother to read the FBI's actual testimony, which was linked in the WaPo article?

    http://www.fbi.gov/news/testimony/going-dark-lawful-electronic-surveillance-in-the-face-of-new-technologies

    Note the date of the testimony: February 17, 2011
    This has been on the burner for a while now.

  11. No, he wants a live tap no warrant by Anonymous Coward · · Score: 3, Interesting

    Firstly I notice we're not talking about Skype here, but that surely is where they really want a live tap? I think the fact we're not mentioning skype is telling, as in, it already has a live feed.

    Secondly, he's clearly talking about a live tap WITHOUT WARRANT, if the delay from getting a court order won't cause problems, then the 5 minutes to save the voice conversation and send it won't either. So he clearly wants a live tap UNDER FBI CONTROL.

    He's seen Syria and Iran's intercept capability and is jealous.

  12. Re: CISPA III: Children of CISPA by Bing+Tsher+E · · Score: 3, Informative

    "Never Let A Crisis Go To Waste"

  13. Re:Yeh, it is disappointing by moeinvt · · Score: 3, Informative

    I believe the OP was making the comment in the context of civil liberties. There is no way to frame this in a partisan way. The destruction of civil liberties is one place where the two parties always seem to find that wonderful spirit of bi-partisanship.

    Hard to believe, but Obama's record on civil liberties is even worse than that of Bush. He has not only perpetuated, but expanded the Bush Administration's radical policies of executive power and state secrets. Bush illegally detained U.S. citizens without charge or trial, Obama is arbitrarily assassinating American citizens without charge or trial.

    Obama has re-authorized the Patriot Act multiple times, he voted for the FISA revisions Act(telecom immunity) and also signed the 2012 NDAA. His "promise" not to use it is absolutely meaningless and could be broken with no repercussions.

    Healthcare reform? More like "big handout to insurance and pharmaceutical industries".
    Killed Bin Laden? Led the raid and personally pulled the trigger did he?
    Out of Iraq? On the Bush time-table and only because Iraqi government refused to sign a new SOFA.

    A "two sides" view of the world may relieve you of the labor associated with thinking, but doesn't reflect reality.