FBI to Congress: Wiretap access in new technology too difficult

 Posted on February 18, 2011 in Criminal Defense

FBI agents and police officers testified at a congressional hearing Thursday regarding increasing difficulties that law enforcement is experiencing in attempting to gather evidence against people they suspect of committing offenses. Law enforcement claims that new forms of communication inhibit their ability to conduct wiretaps.

California criminal defense attorneys know that evidence cannot be used to convict an individual if law enforcement gathers evidence in an unconstitutional manner. The Fourth Amendment protects against unreasonable searches and seizures. Members of law enforcement, however, told congressional leaders yesterday that many new forms of communication provide law enforcement with increased difficulty in placing wiretaps even where the wiretap is authorized under a warrant.

Speaking before a House Judiciary subcommittee, FBI general counsel Valerie Caproni said it is "exponentially more difficult" to place a court-authorized wiretap on some forms of new technology. She says people can communicate via anonymous avatars and through wireless technology that evades wiretaps.

Law enforcement is asking Congress to ensure that new telephone, computer and wireless technologies provide access points for police wiretaps. In 1994, Congress passed a law mandating that new telephone companies provide such access points. Caproni says that law is now outdated in the face of today's internet based communication services.

Greg Nojeim of the Center for Democracy and Technology told the House subcommittee that providing access carries risks. He says government regulation can have a stifling effect on the creation of new applications. He also disputes that law enforcement is having great difficulties in placing wiretaps. Nojeim says federal and state officials placed more wiretaps in 2009 than have been placed in history.

Susan Landau of Harvard University's Radcliffe Institute for Advanced Study also testified at the hearing. She says systems designed to allow police access have been breached.

She says 100 senior government officials in Greece were tapped when someone hacked a switch designed for law enforcement taps. Landau also cited a breach in Italy that resulted in 6,000 unlawful wiretaps of Italian citizens.

The Obama administration reportedly has no current proposal related to providing technological access to law enforcement for wiretapping. Caproni indicated that a proposal may be coming soon.

Source: CNN, "Action needed to assure new technology can be wiretapped, FBI says," Mike M. Ahlers and Jeanne Meserve 17 Feb 2011