The Obama administration is preparing legislation that would require messaging providers to make wiretap capabilities available to federal agencies with court orders, according to a story in the New York Times Sept. 27.
The Times report says that the proposed legislation would require companies such as BlackBerry maker Research In Motion to make it technically possible to respond to a court-ordered wiretap for messaging and e-mail systems. Wiretapping of voice communications is already legal, although a debate continues as to whether a court can issue a wiretap that covers all calls made by a specific person, or only calls on a specific phone.
A similar debate raised its head several years ago when the federal government proposed legislation that would require digital phone carriers and Internet service providers to provide such a wiretap capability. They eventually got the ability to tap these services. The debate this time is similar but for one aspect, and that is the existing practice of encrypting data to provide users with an expectation of privacy.
It's no secret that transmitting text messages in the clear means that it's possible, if unlikely, that they'll be intercepted. This is why companies such as RIM provide tight encryption-they want their business customers to be able to keep their information private. In RIM's case, it's a competitive advantage especially in some industries such as banking and health care, where privacy rules are important.
The government is asking for legislation that would require that all companies providing a communications service to make it possible for investigators armed with a court order to be able to tap into these communications. Currently, they can get the court order, but some companies including RIM can't comply because they can't break their own encryption. This is the issue that caused a standoff in India, Saudi Arabia and Dubai, and likely will continue to cause similar standoffs.
The legislation, which probably won't see the light of day until next year, faces a number of hurdles. There are the obvious privacy concerns, of course, and privacy advocates are sure to raise a ruckus about any such proposal. But there are other hurdles as well, not the least of which is that some of the companies involved, including RIM, aren't in the United States. Currently, the proposal is said to include a requirement that businesses located outside the United States be required to establish U.S. operations that would be able to provide a base for such wiretaps.
It's hard to see exactly how such legislation, even if it's enacted, would do this. Giving U.S. law enforcement agencies some sort of power over foreign companies would seem to require the negotiation of new treaties, at least.