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The FBI is seeking better technology and more authority to improve its Internet wiretapping capability, saying that its current inability to intercept electronic communication in a timely and efficient fashion is a threat to public safety.

Calling the issue "going dark" because the agency is shut out of obtaining potentially important evidence, Valerie Caproni, the FBI's general counsel, outlined both technical and legal problems hindering the bureau's current legal ability to intercept Internet communications even with a court order. Her statements were made in testimony (PDF) before the House Judiciary Committee.

"In the ever-changing world of modern communications technologies … the FBI and other government agencies are facing a potentially widening gap between our legal authority to intercept electronic communications pursuant to court order and our practical ability to actually intercept those communications," she said.

Caproni said the FBI is not seeking to change the way the Internet is designed, but that technology exists to improve the situation that can be deployed "within the current architecture of the Internet."

She said the agency also is not calling for fundamental changes in encryption technologies, although in the past the FBI has suggested that manufacturers of those technologies create a way for the agency gain access to encrypted communications.

Specifically, Caproni said the FBI often faces service providers that don't fully comply with court orders "in a timely and efficient manner," while others do comply but only after "considerable effort and expense by the provider and the government." Others never comply at all, she said.

The main problem is there is no uniform compliance mandate for service providers, according to Caproni. Some are obligated to have the technology in place to comply with Internet wiretapping court orders, while others don't and must develop capabilities as a result of an order.

"In our experience, some providers actively work with the government to develop intercept solutions while others do not have the technical expertise or resources to do so," she said.

The result of these differences in capability is that the FBI is unable to obtain communications and related data "on a regular basis," even when it has the legal authority to do so, Caproni said.

Her testimony outlined two examples of when the "going dark" problem hindered FBI investigation efforts, one in the case of drug trafficking between South America and the United States and the other in a child pornography case.

The Communications Assistance for Law Enforcement Act (CALEA) of 1994 allows service providers to intercept electronic data, but it does not cover Web-based email, social networking, and peer-to-peer services. Caproni did not specifically call for an expansion of the act, but suggested that it is not sufficient to cover the kinds of communications the FBI needs to access to do its job properly.

Not everyone is enthusiastic about letting the agency expand its Internet wiretapping authority.

TechFreedom, a non-profit, technology-policy think tank, issued a "Statement of Concern about the Expansion of CALEA" (PDF) noting that the balance of allowing the government to lawfully protect national security and fight crime "must be reconciled with other important societal values, including cybersecurity, privacy, free speech, innovation, and commerce."

A host of industry groups and other organizations signed the statement, including TechAmerica, the Business Software Alliance, the Center for Democracy and Technology, and the Software and Information Industry Association.

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