Wiretapping the Internet: The Expansion of the Communications Assistance to Law Enforcement Act to Extend Government Surveillance

I. INTRODUCTION II. HISTORY OF WIRETAP AND SURVEILLANCE LAW III. PROPOSED EXPANSION OF CALEA IV. GROWTH OF THE INTERNET AND THE RELATIONSHIP BETWEEN THE GOVERNMENT AND THE PRIVATE SECTOR ONLINE COMPANIES A. History of the Relationship B. Cooperation of the FBI and Online Companies C. Compliance with CALEA D. Implications of a Strong Relationship Between the Government and the Private Sector V. CONCERNS OF INTERNET WIRETAPS IN THE FACE OF AN EXPANDING CALEA A. Design of the Internet B. Fourth Amendment Privacy Concerns C. Threat to the First Amendment Freedom of Speech D. Economic and Innovation Concerns. E. International Impact VI. REASONS GIVEN FOR EXPANDING CALEA A. Within Scope of Government Authority B. Government Interest in Preventing and Investigating Crime C. Current Retrofit Services Delay Ability to Wiretap VII. MORE INFORMATION REQUIRED TO BALANCE COMPETING INTERESTS ADEQUATELY A. Competing Interests B. Lack of Information C. Moving Forward VIII. CONCLUSION I. INTRODUCTION As the Internet has become more prevalent over the past couple of decades, misuse of the Internet for criminal and terrorist activity has led American government officials to endeavor to improve their ability to deal with these threats. Criminal use of the Internet to take advantage of the government's limitations and circumvent traditional government phone wiretaps has inspired the Obama administration to create a task force led by officials from the Justice and Commerce Departments, the Federal Bureau of Investigation ("FBI"), and other agencies." The goal of the task force is to expand the Communications Assistance to Law Enforcement Act ("CALEA"), which was passed in 1994 to regulate telephone and broadband companies to ensure compliance with standards "so that they can begin conducting surveillance of a target immediately after being presented with a court order." (2) President Obama's task force intends to add provisions to CALEA that would allow the government to require "all services that enable communications--including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct 'peer to peer' messaging like Skype--to be technically capable of complying if served with a wiretap order." (3) The expansion of CALEA would likely widen its scope to social networking sites, instant messaging, gaming consoles that allow conversation among multiple players, and to word processing software that allows communication through Internet access. (4) CALEA was first passed to require telephone and broadband companies to construct services that enable efficient and prompt compliance with wiretap orders. While the FCC has previously interpreted this 1994 version of CALEA to require compliance by communications over the Internet using Voice-over-Internet-Protocol ("VoIP") technology, (5) the expansion to all Internet communications would have significant consequences for the use of the Internet as we know it. The unique architecture of the Internet lends it to particular vulnerabilities with the consequence that an expansion of CALEA to all Internet communications would create problems regarding the innovative nature of the Internet as well as national security concerns. The proposed expansion of CALEA also raises free speech and privacy issues. This Note will examine the competing interests related to expanding CALEA and will weigh the potential benefits and consequences of CALEA to conclude that substantially more information is needed to justify a change. Part II will give a background of wiretap and surveillance law, and establish the role of CALEA within the scope of this field of law. Part III will lay out the expansion proposal and the proposed requirements, in addition to discussing the reaction of online companies to the expansion thus far. …