Surveillance Laws Need to Be Updated, Says FBI General Counsel

By Holly Gilbert

The rapid advancement of technology has had a positive impact on law enforcement, but it also poses enormous legal challenges because the U.S. has “old laws,” according to Andrew Weissman, general counsel to the Federal Bureau of Investigations (FBI). He spoke at the American Bar Association Standing Committee on Law & National Security luncheon in Washington, D.C. on Wednesday.

Weissman cited the Communications Assistance for Law Enforcement Act (CALEA), passed in 1994, as a prime example of where the law has not kept up with technology. In this case, the issue is the current legal limitations placed on intelligence gathering. CALEA enabled law enforcement to conduct lawful surveillance on digital communication by requiring telecommunications companies to equip themselves for such monitoring. The The law was amended in 2004 to apply to broadband-based communications. But despite the proliferation of Web-based communication since then, the statute has not evolved to tackle the problem of Web-based surveillance.

“There’s been very little movement; it’s not evolved since 1994,” Weissman said. He cited file sharing programs like Gmail, DropBox, and Google Voice as just a few of the Internet technologies outside the realm of CALEA. Weissman explained that law enforcement’s not being able to lawfully monitor this type of communication leaves out a critical piece of the crime-fighting puzzle. “[We’re] making the ability to intercept communications with a court order increasingly obsolete. Those communications are being used for criminal conversations,” he said.” So this huge legal apparatus to prevent crimes [and] prevent terrorist acts is becoming increasingly hampered and increasingly marginalized the more we have technology that is not covered by CALEA.”

Weismann said the nature of preventing criminal activity does not lend itself to public discourse, but that’s exactly what is needed to improve current circumstances.

“It’s a very hard thing to talk about publicly,” he said. “If you’re in law enforcement or the intelligence community, you don’t like to tell bad actors what you know and what you don’t know. If you tell them what it is you’re capable or not capable of doing, it makes it that much easier for people to avoid being caught. So the mere public discourse about this is sort of a losing proposition.” Even so, he said, “there should be a public debate about it.

Weismann said the intelligence community must come up with a solution that is tailored to today’s technologies but doesn’t stifle growth in the industry. “You don’t want to have a system where you’re needlessly imposing burdens on thriving industries or even budding industries,” he warned.

There has been an effort to address the problem, Weismann noted. The FBI has been working with other members of the intelligence community, to try to draft possible language for how a new law might “tackle the problem of trying to modernize where we were in 1994, even given how the technology has advanced.” Language for a legislative proposal that would broaden wiretapping laws on the Internet has been in the works since 2011, including the monitoring of social networking sites, he said. However, Weismann did not indicate any sort of timeline as to when the proposal might be officially introduced.

Photo of Supreme Court from flickr by methTICALman


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