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Feds struggle with wiretaps in an online-chat age

  • Article by: Ellen Nakashima
  • Washington Post
  • July 25, 2014 - 8:38 PM

– Federal law enforcement and intelligence authorities say they are increasingly struggling 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.

A “large percentage” of wiretap orders to pick up the communications of suspected spies and foreign agents are not being fulfilled, FBI officials said. Law enforcement agents are citing the same challenge in criminal cases; agents, they say, often decline to 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 Hess, executive assistant director of the FBI’s Science and Technology Branch, said in a recent interview. One former U.S. official said that each year “hundreds” of individualized wiretap orders for foreign intelligence are not being fully executed because of a gap between the government’s legal authority and its practical ability to capture communications.

Officials have expressed alarm for several years about the expansion of online communication services that — unlike traditional land lines and cellphone communications — lack intercept capabilities because they are not required by law to build them in.

But the proliferation of these services and a greater wariness — if not hostility — toward government agencies in the wake of revelations about broad National Security Agency (NSA) surveillance have become a double whammy for law enforcement and intelligence agencies, according to FBI officials and others.

Today, at least 4,000 companies in the United States provide some form of communication service, and a “significant portion” are not required by law to make sure their platforms are wiretap-ready, Hess said. Among the types of services that were unthinkable not long ago are photo-sharing services, which say they 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.

Meantime, the disclosures by former NSA contractor Edward Snowden have fostered a widespread view that the government is excessively sweeping up all manner of Americans’ communications. Founded or not, that impression, FBI officials argue, has unfairly extended to the investigations of law enforcement and intelligence agencies that obtain individual warrants to intercept the calls, chats and instant messages of criminals and spies.

Industry officials, security experts and others counter that the government already has many tools available to get the information it needs.

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.

More than a dozen Internet-based instant messaging applications commonly used in child-exploitation networks lack a full capability to provide real-time intercepts.

 

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