Rather than antagonizing companies whose cooperation they need, federal officials typically back off when a company is resistant, industry and former officials said. But law enforcement officials say the cloak drawn on suspects’ online activities — what the FBI calls the “going dark” problem — means that critical evidence can be missed.
“The importance to us is pretty clear,” Andrew Weissmann, the FBI’s general counsel, said last month at an American Bar Association discussion on legal challenges posed by new technologies. “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.”
There is currently no way to wiretap some of these communications methods easily, and companies effectively have been able to avoid complying with court orders. While the companies argue that they have no means to facilitate the wiretap, the government, in turn, has no desire to enter into what could be a drawn-out contempt proceeding.
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. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.
Instead of setting rules that dictate how the wiretap capability must be built, the proposal would let companies develop the solutions as long as those solutions yielded the needed data. That flexibility was seen as inevitable by those crafting the proposal, given the range of technology companies that might receive wiretap orders. Smaller companies would be exempt from the fines.
The proposal, however, is likely to encounter resistance, said industry officials and privacy advocates.
“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, which focuses on issues of privacy and security. “They might as well call it the Cyber Insecurity and Anti-Employment Act.”
The Obama administration has not yet signed off on the proposal. Justice Department, FBI and White House officials declined to comment. Still, Weissmann said at the ABA discussion that the issue is the bureau’s top legislative priority this year, but he declined to provide details about the proposal.