Argument

The FBI's New Wiretapping Plan Is Great News for Criminals

But bad news for the rest of us.

The FBI wants a new law that will make it easier to wiretap the Internet. Although its claim is that the new law will only maintain the status quo, it's really much worse than that. This law will result in less-secure Internet products and create a foreign industry in more-secure alternatives. It will impose costly burdens on affected companies. It will assist totalitarian governments in spying on their own citizens. And it won't do much to hinder actual criminals and terrorists.

As the FBI sees it, the problem is that people are moving away from traditional communication systems like telephones onto computer systems like Skype. Eavesdropping on telephones used to be easy. The FBI would call the phone company, which would bring agents into a switching room and allow them to literally tap the wires with a pair of alligator clips and a tape recorder. In the 1990s, the government forced phone companies to provide an analogous capability on digital switches; but today, more and more communications happens over the Internet.

What the FBI wants is the ability to eavesdrop on everything. Depending on the system, this ranges from easy to impossible. E-mail systems like Gmail are easy. The mail resides in Google's servers, and the company has an office full of people who respond to requests for lawful access to individual accounts from governments all over the world. Encrypted voice systems like Silent Circle are impossible to eavesdrop on -- the calls are encrypted from one computer to the other, and there's no central node to eavesdrop from. In those cases, the only way to make the system eavesdroppable is to add a backdoor to the user software. This is precisely the FBI's proposal. Companies that refuse to comply would be fined $25,000 a day.

The FBI believes it can have it both ways: that it can open systems to its eavesdropping, but keep them secure from anyone else's eavesdropping. That's just not possible. It's impossible to build a communications system that allows the FBI surreptitious access but doesn't allow similar access by others. When it comes to security, we have two options: We can build our systems to be as secure as possible from eavesdropping, or we can deliberately weaken their security. We have to choose one or the other.

This is an old debate, and one we've been through many times. The NSA even has a name for it: the equities issue. In the 1980s, the equities debate was about export control of cryptography. The government deliberately weakened U.S. cryptography products because it didn't want foreign groups to have access to secure systems. Two things resulted: fewer Internet products with cryptography, to the insecurity of everybody, and a vibrant foreign security industry based on the unofficial slogan "Don't buy the U.S. stuff -- it's lousy."

In 1993, the debate was about the Clipper Chip. This was another deliberately weakened security product, an encrypted telephone. The FBI convinced AT&T to add a backdoor that allowed for surreptitious wiretapping. The product was a complete failure. Again, why would anyone buy a deliberately weakened security system?

In 1994, the Communications Assistance for Law Enforcement Act mandated that U.S. companies build eavesdropping capabilities into phone switches. These were sold internationally; some countries liked having the ability to spy on their citizens. Of course, so did criminals, and there were public scandals in Greece (2005) and Italy (2006) as a result.

In 2012, we learned that every phone switch sold to the Department of Defense had security vulnerabilities in its surveillance system. And just this May, we learned that Chinese hackers breached Google's system for providing surveillance data for the FBI.

The new FBI proposal will fail in all these ways and more. The bad guys will be able to get around the eavesdropping capability, either by building their own security systems -- not very difficult -- or buying the more-secure foreign products that will inevitably be made available. Most of the good guys, who don't understand the risks or the technology, will not know enough to bother and will be less secure. The eavesdropping functions will 1) result in more obscure -- and less secure -- product designs, and 2) be vulnerable to exploitation by criminals, spies, and everyone else. U.S. companies will be forced to compete as a disadvantage; smart customers won't buy the substandard stuff when there are more-secure foreign alternatives. Even worse, there are lots of foreign governments who want to use these sorts of systems to spy on their own citizens. Do we really want to be exporting surveillance technology to the likes of China, Syria, and Saudi Arabia?

The FBI's short-sighted agenda also works against the parts of the government that are still working to secure the Internet for everyone. Initiatives within the NSA, the DOD, and DHS to do everything from securing computer operating systems to enabling anonymous web browsing will all be harmed by this.

What to do, then? The FBI claims that the Internet is "going dark," and that it's simply trying to maintain the status quo of being able to eavesdrop. This characterization is disingenuous at best. We are entering a golden age of surveillance; there's more electronic communications available for eavesdropping than ever before, including whole new classes of information: location tracking, financial tracking, and vast databases of historical communications such as e-mails and text messages. The FBI's surveillance department has it better than ever. With regard to voice communications, yes, software phone calls will be harder to eavesdrop upon. (Although there are questions about Skype's security.) That's just part of the evolution of technology, and one that on balance is a positive thing.

Think of it this way: We don't hand the government copies of our house keys and safe combinations. If agents want access, they get a warrant and then pick the locks or bust open the doors, just as a criminal would do. A similar system would work on computers. The FBI, with its increasingly non-transparent procedures and systems, has failed to make the case that this isn't good enough.

Finally there's a general principle at work that's worth explicitly stating. All tools can be used by the good guys and the bad guys. Cars have enormous societal value, even though bank robbers can use them as getaway cars. Cash is no different. Both good guys and bad guys send e-mails, use Skype, and eat at all-night restaurants. But because society consists overwhelmingly of good guys, the good uses of these dual-use technologies greatly outweigh the bad uses. Strong Internet security makes us all safer, even though it helps the bad guys as well. And it makes no sense to harm all of us in an attempt to harm a small subset of us.

Chip Somodevilla/Getty Images

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