News Feature | August 11, 2014

Federal Wiretappers Can't Keep Up With New Chat Apps

By Christine Kern

New Chat Apps Thwart Wiretappers

Federal law enforcement and intelligence authorities are finding it increasingly difficult to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant messaging and other online communications that lack the technical means to be intercepted, according to The Washington Post.

FBI officials report that a “large percentage” of wiretap orders to pick up the communications of suspected spies and foreign agents are not being fulfilled, and law enforcement agents are citing the same challenge in criminal cases. Because of the challenges, some agents often do not even seek orders when they know firms lack the means to tap into a suspect’s communications in real time.

“It’s a significant problem, and it’s continuing to get worse,” Amy S. Hess, executive assistant director of the FBI’s science and technology branch.

FBI officials told The Washington Post that the bureau has trouble fulfilling wiretaps because suspects use such a wide range of chat and online communication channels.

According to one former U.S. official, each year “hundreds” of individualized wiretap orders for foreign intelligence are not being fully executed because of the growing gap between authority and ability.  While the government technically has the legal authority to execute the taps, its practical ability to capture communications, what bureau officials have called “going dark,” is seriously lagging behind.

The virtual explosion of online communication services that lack intercept capabilities — because they are not required by law — have left officials quite concerned. Traditional and cellular telephone communications do require intercept capabilities by law. There are at least 4,000 companies in the U.S. that provide some form of communication services, most of which are not required by law to include wiretap capability. This includes photo-sharing services, which allow users to send photos that are automatically deleted, and peer-to-peer Internet phone calls, for which there are no practical means for interception.

The FBI has pushed to change that, demanding for the power to make chat programs install surveillance gear. They've been trying for years and it hasn't happened yet.

Some companies draw out the process of negotiating with the government. Others provide suspects' Internet-based messages hours after they are sent, or offer minimal forms of compliance — weekly screen shots of a suspect's communications, for instance — and argue they have fully complied, government officials said.

Industry officials, security experts, and others counter that the government already has many tools available to get the infor­mation it needs, that officials brought the predicament on themselves by failing to protect the secrecy around surveillance programs, and that forcing companies to build wiretap solutions will make systems more insecure.

The Obama administration had readied legislation aimed at enhancing the government’s ability to enforce court-issued wiretap orders last year, but it was derailed by the fallout from the Snowden affair.

“Politically, it’s plutonium now for a member of Congress in this environment to be supporting something that would enhance the government’s ability to conduct electronic surveillance,” said Jason M. Weinstein, a former deputy assistant attorney general for the Justice Department’s criminal division and now a partner at Steptoe & Johnson.

Last year, judges authorized 3,600 federal and state criminal wiretaps and 1,588 foreign intelligence surveillance orders. In many of them, law enforcement said, the inability to fully execute the orders hampered their investigations.

Software developers and solutions providers should watch for indications that laws could change and impact communications solutions.

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