Law enforcement's limits in wiretapping the Internet

Thursday, October 7, 2010

WIRETAPPING THE Internet is nothing new. Law enforcement agencies for years have been able to seize information from communications providers, as long as they obtain a court order. But new technologies have hampered law enforcement officials' ability to quickly retrieve information that a judge has determined they are entitled to.

Some problems appear to have relatively easy fixes. For example, some e-mail services are not subject to the wiretap law because their parent companies are classified as information services and not as communications providers. A change in the statute to include all e-mail -- regardless of the classification of the parent company -- should bring such products into the fold.

The tougher choices involve products such as Research in Motion's BlackBerrys, which are attractive to consumers precisely because they provide highly secure means of communication. The FBI is drafting a proposal that would require the retrofit of such products to allow for quicker and easier access to targeted communications. The proposal , which likely would not be introduced as legislation until early 2011, would also require new products to have these capacities built in. Manufacturers would decide how to achieve the desired result and would be responsible for retrieving the information. The FBI would simply get the results after a judge's approval.

Some privacy advocates and technology experts have sounded alarms, arguing that such changes would make programs more vulnerable to hackers. Some argue that because the vast majority of users are law-abiding citizens, the government must accept the risk that a few criminals or terrorists may rely on the same secure networks.

The policy question is not difficult: The FBI should be able to quickly obtain court-approved information, particularly data related to a national security probe. Companies should work with the FBI to determine whether there are safe ways to provide access without inviting unwanted intrusions. In the end, there may not be a way to perfectly protect both interests -- and the current state of technology may prove an impenetrable obstacle. But the FBI is right to seek a way forward, and companies would be smart to work in good faith to try to fashion a solution.

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