WASHINGTON, D.C. –– Today, the Senate Judiciary and Intelligence Committees hold hearings focused on how law enforcement agencies deal with criminal and national security threats online. The Senate hearing features FBI Director James Comey speaking on “Counterterrorism, Counterintelligence, and the Challenges of ‘Going Dark’” — with no other witnesses, suggesting that he intends to make a significant policy proposal. FBI officials have long hinted at proposals to expand the 1994 Community Assistance to Law Enforcement Act (CALEA) to Internet services, an idea teed up by Comey in an unusual blog post on Monday.

“The FBI seems hell-bent on crippling encryption tools one way or another,” warned TechFreedom President Berin Szoka. “Expanding CALEA might mean requiring that online service providers always retain both ‘keys’ needed to decrypt user data, so they could turn them over to the government. Or it could simply mean curtailing private encryption technology. Either way, CALEA II would have enormous costs, for consumer privacy as well as American business.”

“There’s no such thing as a data security vulnerability that only the ‘good guys’ can access,” said TechFreedom Legal Fellow Mark Potkewitz. “If our government forces companies to undermine their own security, those vulnerabilities can be exploited by cyber criminals, foreign governments, and others. And amplifying the widespread perception around the world that the U.S. government has a backdoor into all American web companies isn’t just bad for business, it’s bad for security, too: it will encourage the growth of foreign Internet services, which the U.S. government cannot access, even with proper court orders.”

“The FBI is playing a tired political game,” continued Potkewitz. “They will doubtless try to appear pragmatic and open to compromise. In fact, they’re recycling their playbook from the 1990s; when they first tried to force telephone makers to embed the ‘Clipper Chip’ into their products. They’ve spent years laying the groundwork to expand CALEA while failing to substantiate their vague, alarmist claims about parts of the Internet ‘going dark’.”

“This Congress won’t touch CALEA expansion with a ten-foot pole, so Comey may actually be lobbying the FCC,” concluded Szoka. “The FCC has always interpreted ‘telecommunications service’ even more broadly under CALEA than under the Communications Act, so having expanded the scope of Title II may open the door to the FCC expanding CALEA in general — without Congress. In particular, the Open Internet Order’s little-noticed reinterpretation of the key term ‘public switched network’ as meaning the Internet itself, rather than the traditional telephone network, would make it easy for the FCC to extend CALEA to cover all VoIP services, even if they don’t allow calls to traditional telephone numbers. If so, net neutrality hardliners will have played right into the FBI’s hands.”

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We can be reached for comment at media@techfreedom.org. See our other work on cybersecurity and Title II, including:

  • Coalition letter signed by TechFreedom and a wide range of other groups and security experts urging President Obama to support Americans’ right to use strong encryption
  • TechFreedom’s motion to intervene in the D.C. Circuit litigation over the Open Internet order (explaining the implications of the FCC’s reinterpretation of the Communications Act)

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