White House Backs FBI Plan for Surveillance State

WASHINGTON — The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.

The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders. That proposal, however, bogged down amid concerns by other agencies, like the Commerce Department, about quashing Silicon Valley innovation.

While the F.B.I.’s original proposal would have required Internet communications services to each build in a wiretapping capacity, the revised one, which must now be reviewed by the White House, focuses on fining companies that do not comply with wiretap orders. The difference, officials say, means that start-ups with a small number of users would have fewer worries about wiretapping issues unless the companies became popular enough to come to the Justice Department’s attention.

Still, the plan is likely to set off a debate over the future of the Internet if the White House submits it to Congress, according to lawyers for technology companies and advocates of Internet privacy and freedom.

“I think the F.B.I.’s proposal would render Internet communications less secure and more vulnerable to hackers and identity thieves,” said Gregory T. Nojeim of the Center for Democracy and Technology. “It would also mean that innovators who want to avoid new and expensive mandates will take their innovations abroad and develop them there, where there aren’t the same mandates.”

Andrew Weissmann, the general counsel of the F.B.I., said in a statement that the proposal was aimed only at preserving law enforcement officials’ longstanding ability to investigate suspected criminals, spies and terrorists subject to a court’s permission.

“This doesn’t create any new legal surveillance authority,” he said. “This always requires a court order. None of the ‘going dark’ solutions would do anything except update the law given means of modern communications.”

A central element of the F.B.I.’s 2010 proposal was to expand the Communications Assistance for Law Enforcement Act — a 1994 law that already requires phone and network carriers to build interception capabilities into their systems — so that it would also cover Internet-based services that allow people to converse. But the bureau has now largely moved away from that one-size-fits-all mandate.

Instead, the new proposal focuses on strengthening wiretap orders issued by judges. Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work. Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not. The shift in thinking toward the judicial fines was first reported by The Washington Post, and additional details were described to The New York Times by several officials who spoke on the condition of anonymity.

Read more at The New York Times