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Should the FBI Be Allowed to Wiretap Facebook?—A Commentary by Adam Cohen

The following commentary was posted on Time.com on May 28, 2012.

Should the FBI Be Allowed to Wiretap Facebook?
By Adam Cohen

We may all be getting a new Facebook friend soon: the Federal Bureau of Investigation. The FBI wants to shift its wiretapping from old-school telephone lines to person-to-person platforms like email and instant messaging and even social media like Facebook. To help it make the switch, the FBI is asking Congress to require tech companies to rewrite their software so it has a “back door” that the FBI can use to listen in.

It is all part of an initiative known as “Going Dark.” The FBI says that its ability to follow suspected criminals is eroding – or “going dark”—as people communicate more online and that it needs new powers to help it track down drug dealers, sex traffickers, and terrorists. But “Going Dark” has – not surprisingly – set off a major privacy battle, even though the FBI would still need to get court approval to place a wiretap. Civil liberties groups are sounding the alarm, warning that the changes would make all of our online communications potentially open to the prying eyes of the government.

The Internet has arguably interfered with the FBI’s ability to fight crime. In one case, the FBI was closing in on a child prostitution ring that used a social networking site to identify and recruit victims. Because the site had no “back door,” the FBI says its investigation was impeded – and the result was a weaker case and a lighter sentence than it might otherwise have gotten.

The FBI says it was also hampered in investigating a criminal organization that smuggled cocaine up from South America and trafficked guns to Africa. The group, according to a confidential source, intentionally used communications platforms that law enforcement could not intercept. The FBI told Congress last year that, as a result, the organization was still trafficking weapons.

The FBI argues that the Communications Assistance for Law Enforcement Act of 1994 gives it all the legal authority it needs to monitor the sites it is interested in – from social media like Facebook and Twitter to messaging platforms like Google Talk to web-based email like Yahoo Mail. But the FBI needs these sites to do two things: create “back doors” in their software so it can monitor the communications, and give it a way to un-encrypt any messages that are encrypted. This month, FBI director Robert Mueller told Congress his agency would like to see the wiretap law change.

But the privacy threat is also very real. If the FBI gets the “back doors” it wants, Internet services would be required to create a massive online infrastructure for law enforcement to spy on members of the public. That would give the government a power to monitor far beyond anything it has ever had. The ACLU has compared what the FBI is seeking to the government requiring every home to be built with pre-installed cameras and microphones. “It would provide little reassurance,” the ACLU has said, “to know that the government would have to get a search warrant to turn those cameras on.”

It is not clear the FBI will get its changes. Polls show that the public is deeply concerned about online privacy, and the White House and Congress may not want to be seen as coming out in favor of introducing government monitoring. And the tech industry is also pushing back. TechAmerica – an industry group with representatives from eBay, IBM and other major tech companies – is objecting to the FBI’s proposal as unduly costly and burdensome, CNET reports.

One of the great debates about the Internet is whether it is making people more or less free. On the side of “more free” are events like the Arab Spring, in which social media have been used to help organize opposition to authoritarian regimes. But proposals like the FBI’s “Going Dark” initiative show the other side – how government can use the Internet to monitor people in ways that were not possible in the pre-digital age.
It is not hard to see why the FBI wants wiretapping backdoors. It would certainly make its job easier. But rejiggering the Internet so government can conveniently monitor everything we say and do online is too high a price to pay for making law enforcement more efficient.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.