This is especially shocking because a federal judge just ruled that police can place surveillance cameras on private property without a search warrant and another federal judge quickly overturned a previous decision blocking the indefinite detention provisions of the National Defense Authorization Act (NDAA) for Fiscal Year 2012.
The program, known as the “Going Dark,” is, according to Threat Level, aimed at “extend[ing] [the government’s] ability to wiretap virtually all forms of electronic communications.”
Judge Seeborg ruled on October 30 that the federal government “did not adequately respond to a Freedom of Information Act request from the Electronic Frontier Foundation,” according to CNET.
Seeborg ordered a “further review of the materials previously withheld” in the lawsuit seeking information on the “Going Dark” program.
The FBI’s program is aimed at actually forcing major companies including Apple, Facebook, Google, Microsoft and Yahoo to alter their systems in order to guarantee easy wiretap access.
One might point out that such a system is likely already in place in the case of Google, given their relationship to the National Security Agency (NSA) and other government entities.
Some could very well consider this FBI program even more troubling than it might otherwise be due to the dramatic increase in warrantless surveillance over recent years.
“We must ensure that our ability to obtain communications pursuant to court order is not eroded,” Robert Mueller, director of the FBI, to a Senate Committee in September, according to CNET.
Many companies are “are not required to build or maintain intercept capabilities” as of right now, according to Mueller, as if it is the responsibility of companies to enable illegal government surveillance.
The FBI argues that lawful investigations are hindered by Internet companies not being required to have backdoor surveillance systems in place in advance or because their systems prevent such surveillance.
This effort is nothing new, evidenced by the FBI requesting Internet giants to support new legislation which would require various websites and VoIP, instant messaging, email and social networking providers to put a system in place allowing for backdoor surveillance.
Mueller later confirmed that the bureau is indeed pushing for “some form of legislation” that would work towards such a requirement.
The ruling from Seeborg also requires the FBI to make it clear which documents related to Going Dark are actually being withheld from public scrutiny. The Electronic Frontier Foundation (EFF) has rightly called the FBI’s efforts to keep this program under wraps unreasonable and confusing.
Seeborg stated that both sides have 15 days to “meet and confer to negotiate a timetable for the FBI to complete [the revisions required].”
Unfortunately, Seeborg stopped short of actually ruling on what information must be turned over.
Currently the Department of Justice has only made 707 pages available of 2,662 pages that might be relevant and those released pages are heavily redacted, according to the EFF.
Indeed, the EFF pointed out that some pages had been removed entirely, in clear violation of the oft-abused open-government laws.
“Publicity (adverse or otherwise) regarding any internal FBI development projects (e.g. National Electronic Surveillance Strategy), and legislative strategy to make amendments to outdated laws, that these congressional staffers, and DOJ representatives, may be requested to provide input on, may seriously prejudice their effectiveness in helping on other developmental projects, and legislative strategies,” argued David Hardy, the section chief for the FBI’s record management division.
“These employees may have to give input on the development of strategy plans, like developing ways to enhance ELSUR [electronic surveillance] capabilities through legislative amendments,” Hardy continued. “The publicity associated with the release of these congressional staffers involved with an FBI developmental project could trigger hostility toward a particular employee.”
While the FBI remains tight-lipped on the decision, EFF staff attorney Jennifer Lynch said, “It’s nice to have a court say the government can’t do that.”
Lynch also stated that Seeborg’s ruling shows that the federal government indeed has to at least “make an effort” to comply with the Freedom of Information Act (FOIA).
The EFF requested the entirety of the records relating to Going Dark back in 2009 and in the second FOIA request filed in 2010 they requested examples of the surveillance allegedly being hindered by various social networks and VoIP services like Skype.
The EFF also sought documents relating the congressional briefings and meetings with representatives of the industry dealing with the Going Dark program.
However, the effort on the FBI’s part has a long history dating back almost ten years ago with a lobbying effort focusing on the Federal Communications Commission (FCC).
The FBI’s Electronic Surveillance Technology Section sought to force broadband providers to provide increasingly efficient and standardized surveillance facilities for the government, a request which was granted soon after by the FCC and upheld in 2006 by a federal appeals court.
If the FBI’s wishes are granted, the Communications Assistance for Law Enforcement Act (CALEA) of 1994 would be amended in order to include Internet companies as well as telecommunications providers currently covered by the law.
The FBI claims that expanding CALEA wouldn’t actually be expanding or creating a new wiretapping law since a court order would, at least in principle, still be required.
“But privacy groups and civil libertarians — and Internet companies — are hardly likely to embrace the idea,” Declan McCullagh points out in his article for CNET.
The battle over increasingly easy government surveillance will not likely end soon and based on the troubling precedents established as of late, the chances of the Constitution being honored over the interests of the federal government seem slim, at best.
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