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FBI Seeking Expanded Powers To Spy On Your Gmail Account

The Federal Bureau of Investigation is seeking an expansion of its ability to monitor Gmail accounts:

Last week, during a talk for the American Bar Association in Washington, D.C., FBI general counsel Andrew Weissmann discussed some of the pressing surveillance and national security issues facing the bureau. He gave a few updates on the FBI’s efforts to address what it calls the “going dark” problem—how the rise in popularity of email and social networks has stifled its ability to monitor communications as they are being transmitted. It’s no secret that under the Electronic Communications Privacy Act, the feds can easily obtain archive copies of emails. When it comes to spying on emails or Gchat in real time, however, it’s a different story.

That’s because a 1994 surveillance law called the Communications Assistance for Law Enforcement Act only allows the government to force Internet providers and phone companies to install surveillance equipment within their networks. But it doesn’t cover email, cloud services, or online chat providers like Skype. Weissmann said that the FBI wants the power to mandate real-time surveillance of everything from Dropbox and online games (“the chat feature in Scrabble”) to Gmail and Google Voice. “Those communications are being used for criminal conversations,” he said.

While it is true that CALEA can only be used to compel Internet and phone providers to build in surveillance capabilities into their networks, the feds do have some existing powers to request surveillance of other services. Authorities can use a “Title III” order under the “Wiretap Act” to ask email and online chat providers furnish the government with “technical assistance necessary to accomplish the interception.” However, the FBI claims this is not sufficient because mandating that providers help with “technical assistance” is not the same thing as forcing them to “effectuate” a wiretap. In 2011, then-FBI general counsel Valerie Caproni—Weissmann’s predecessor—stated that Title III orders did not provide the bureau with an “effective lever” to “encourage providers” to set up live surveillance quickly and efficiently. In other words, the FBI believes it doesn’t have enough power under current legislation to strong-arm companies into providing real-time wiretaps of communications.

Because Gmail is sent between a user’s computer and Google’s servers using SSL encryption, for instance, the FBI can’t intercept it as it is flowing across networks and relies on the company to provide it with access. Google spokesman Chris Gaither hinted that it is already possible for the company to set up live surveillance under some circumstances. “CALEA doesn’t apply to Gmail but an order under the Wiretap Act may,” Gaither told me in an email. “At some point we may expand our transparency report to cover this topic in more depth, but until then I’m not able to provide additional information.”

This is just the latest example of law enforcement seeking to have their surveillance powers enhanced as Congress looks to bring telecommunications laws into the 21st century. In the past, they’ve essentially gotten whatever they want from a complaint Congress. Perhaps things will be different this time around.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Tsar Nicholas says:

    Without the tools necessary to enforce laws then law enforcement can’t effectively do its job. The items for which this Weissmann fellow is advocating make abundant sense. Hopefully they’ll be enacted into law. And kudos to Team Obama for not bothering to worry about the Internet’s black helicopters brigades. Fringe demographics matter not one iota, especially when national security potentially is at stake.

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  2. @Tsar Nicholas:

    There’s a distinction between police being allowed to obtain data from someone in response to a specific warrant, and requiring people to install security bypass devices because the police could conceivably want access at some time in the future.

    Could, for example, the sheriff require that they be given a copy of every door key in the county in case they need to enter the premise someday?

    Like or Dislike: Thumb up 5 Thumb down 0

  3. Bleev K says:

    @Tsar Nicholas: So, you don’t want to give away your guns but you don’t give a crap about any other freedom? Man, you’re just pathetic.

    Like or Dislike: Thumb up 3 Thumb down 0

  4. greg says:

    @Bleev K:
    Hammer … hit nail on head!

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  5. Just 'nutha ig'rant cracker says:

    Funny that this should come up today. When I went to the usual place that I get the headlines that include this site, I was greeted with “Content from this source is currently not avaliable. Click here…” When I clicked there, I was transfered to…wait for it…Google! Where they asked me for my feedburner account name and password (neither of which I have one of).

    Long story shorter, Google has now made it more difficult to link to this site. Thanks ever so much Google! I fully expect that I will gradually drift away from this unhappy little corner of the snarkosphere. Doug, I’ll hardly miss you (and I expect that the feeling is mutual).

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  6. Jenos Idanian #13 says:

    How remarkable. Tsar Nicky applauds the latest move by the Obama administration, and is promptly attacked for his stance… but not a word of condemnation for the Obama administration, who is making the move that is at the core of this discussion.

    I was hoping I was wrong, but this really is about the personalities who participate around here, and the issues are merely excuses for the Usual Suspects to bash each other. It’s not about principles, but petty tribalism.

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  7. mantis says:

    I think anyone who is serious about these issues recognizes that law enforcement needs to at least have the ability to monitor electronic communications, with the proper due process, as they can with traditional telephone conversations. While the technology is there for law enforcement to listen in on any and all phone conversations, they are legally prohibited from doing so without a warrant in most cases (PATRIOT Act/NSLs notwithstanding).

    While I certainly have problems with warrantless searches of US citizens in general, that does not mean that law enforcement should not have the ability to monitor communications with a warrant to do so. Unless I am missing something, that is all the FBI is seeking.

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  8. wr says:

    @Jenos Idanian #13: “I was hoping I was wrong, but this really is about the personalities who participate around here, and the issues are merely excuses for the Usual Suspects to bash each other. It’s not about principles, but petty tribalism.

    Uh-huh. I notice you manage to bash the people you don’t like without even bothering to weigh in on the subject under discussion. So please spare us all the phony sanctimony. You’ve bragged repeatedly about how you only get invoved in issues once you discover that they’ll annoy liberals, at which point you begin your massive research campaign… or use Google to find out the snazziest buzzphrases.

    But maybe I underestimate you. Enlighten us all, Jay, without reference to Obama, what do you think of this policy? (Hint: You can find a decription of the actual policy in the post above.)

    Like or Dislike: Thumb up 2 Thumb down 0

  9. Jenos Idanian #13 says:

    @wr: Sigh. You showed such promise with your comments on early Marvel, and now you’ve relapsed. You’re a real-life “Flowers For Algernon.”

    First up, you’re lying through your teeth with your paraphrasing of me. I said that, sometimes, when I lack in-depth knowledge of an issue, I’ll see who is advocating for which side. This gives me a good starting point, as I know that I tend to agree with some and disagree with others. And if a whole bunch of liberals are going batshit crazy over something, that’s usually a pretty good sign I should support the other side. Not a hard and fast rule, and certainly not an absolute like you phrased it. That was an incredibly dishonest and simple-minded interpretation of what I said — which is why I should not be surprised that you went there.

    Next, why should I not reference Obama, when it’s his administration that’s calling for the change?

    The core question is, is the FBI simply trying to keep its abilities up to date with changing technologies, or is the FBI simply using the changing technology as an excuse to expand its powers? I’d lean towards the latter, as it seems that they could find a compliant judge to issue a warrant to cover an unusual circumstance. The policy seems to be more about convenience and “fishing trips” than a real gap.

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  10. mantis says:

    @Jay Tea’s whiny puppet Jenos Idanian #13:

    I’d lean towards the latter, as it seems that they could find a compliant judge to issue a warrant to cover an unusual circumstance. The policy seems to be more about convenience and “fishing trips” than a real gap.

    Based on what? Have you even bothered to familiarize yourself with the details, starting with the text quoted in this very post?

    However, the FBI claims this is not sufficient because mandating that providers help with “technical assistance” is not the same thing as forcing them to “effectuate” a wiretap. In 2011, then-FBI general counsel Valerie Caproni—Weissmann’s predecessor—stated that Title III orders did not provide the bureau with an “effective lever” to “encourage providers” to set up live surveillance quickly and efficiently. In other words, the FBI believes it doesn’t have enough power under current legislation to strong-arm companies into providing real-time wiretaps of communications.

    The law doesn’t allow law enforcement to force companies to allow surveillance at all, at least according to the FBI. That means even with a warrant for a wiretap, they can’t make the company let them monitor the communications (or even build in the technological capability to do so).

    Your position of “oh, they can get a judge to let them do it” when they can’t even access the communications in question even with a warrant just reveals that you didn’t even bother to read the post before whining about how not enough people were blaming Obama for something you don’t even understand.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. Jenos Idanian #13 says:

    @mantis: So, are you siding with Tsar Nicky here? Or are you saying that the Obama administration is overreaching and stomping on civil rights?

    Like or Dislike: Thumb up 0 Thumb down 2

  12. mantis says:

    @Super Space Bounty Hunter Jenos Idanian #13:

    So, are you siding with Tsar Nicky here? Or are you saying that the Obama administration is overreaching and stomping on civil rights?

    Neither. You can read my opinion in my first comment.

    Btw, it’s a dead giveaway when you don’t even respond to me calling out your lack of understanding of even the basic facts here, but choose instead to try to figure out what “team” I am on. Your complaints about other commenters here are quite obvious projection, chuckles.

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  13. Jenos Idanian #13 says:

    @mantis: You might note that I didn’t offer an opinion on the topic; you asked for it. I have NEVER been shy about offering my opinions when I actually think I have a good one; on this one, I was on the fence and going to give it a pass.

    What I did find interesting was precisely what I pointed out at first: Nicky actually supporting the Obama administration, and being attacked by people for his position — while being studiously silent about the fact that Nicky was just endorsing a proposal put forth by the Obama administration. It’s like they couldn’t bring themselves to say anything bad about Obama, so instead they made it about Nicky.

    I’m not well versed on the niceties of the original topic, and it doesn’t interest me enough to educate myself on the matter — I have to prioritize my time and efforts, and working around 60 hours a week doesn’t give me much time to learn about things that don’t grab my interest or offer some kind of reward. But the reaction to Nicky’s comment was so blatantly tribal, so perfectly “us against them at any price,” that it crystallized a thought that had been floating around the periphery of my mind for some time.

    Much like Doug’s habit of focusing all his energy on criticizing Republicans and conservatives until he’s challenged by liberals as to why he doesn’t embrace liberalism — then, and pretty much only then, does he trot out his rote comment about how bad they are. It took his latest protestations to snap that one into focus, too.

    And damn, I’m sorry I missed the discussion on Rob Portman’s change of heart on gay marriage. That was pure tribalism — here was a very prominent Republican changing sides — sincerely — on a major issue, and instead of welcoming him as an ally, the leftists here all tried one-upping each other on who could piss on him more until someone called them on it. I note you were not among them; congratulations. But you were also rather tepid about calling out your allies for their full-throated assault on Portman.

    On issues like this one, I don’t offer opinions. And I wasn’t going to. My response is simple: on questions regarding the expansion of law enforcement surveillance powers, if pressed, I will generally say no. But if it’s something I don’t feel comfortable speaking about, I’ll either see what others say, or ignore it. As I said, I have to prioritize.

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  14. mantis says:

    @Jenos Idanian #13:

    You might note that I didn’t offer an opinion on the topic; you asked for it.

    No, I didn’t.

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  15. Ben Wolf says:

    The ECPA currently classifies any emails/messages older than 180 days to be “abandoned”. To obtain them the Feds must simly issue a written statement the emails are relevant to an investigation; there is no judicial oversight whatsoever in the process.

    The FBI is now seeking to extend this to real-time monitoring under the same conditions, without warrants or redress to the courts. In other words, they want to eliminate the 180 day abandonment requirement entirely to enable unfettered access to private communications.

    And no, this is not acceptable.

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  16. Ben Wolf says:

    @Jenos Idanian #13: There are a handful of people in the country who are non-partisan and principled. When the Obama Administration does something we believe is right we support it, and when it does something we believe is wrong we oppose it. Unfortunately those principled people are almost exclusively on the left; notice that civil liberties violations were never a point on which the President was attacked by his rivals during the 2012 elections. To the contrary, excepting Ron Paul conservatives attacked the President for not dismantling civil and constitutional protections quickly enough.

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  17. Jenos Idanian #13 says:

    @mantis: My apologies; it was wr who asked “what do you think,” not you. I shouldn’t make that kind of mistake; his moments of lucidity are far less frequent than yours.

    Like or Dislike: Thumb up 0 Thumb down 1

  18. Tyrell says:

    Why is a search warrant required? What is the difference. in email and my USPS mail at the post office or out in the mailbox?
    “Who is monitoring the monitors?”

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