FBI Is Complaining That Its $8.4 Billion Budget Isn't Enough To Keep Up With Criminal Technology

By Tim Cushing

It always amuses me when the FBI - an investigative agency with an $8.4 billion budget -- starts complaining about how it's falling behind in the tech race. Criminals are apparently going to outwit the agency using nothing but Snapchat and Yo! unless… well, no one interviewed seems to know how to complete that sentence, but, rest assured, g-men brows are intensely furrowed.

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.

As you read the following words, keep in mind that this is an agency that is rolling out a facial recognition database and utilizes cell tower spoofers on a regular basis. This is an agency whose name is on every bulk metadata request that runs through the FISA court. This is an agency that can open so-called "threat assessments" with less than reasonable suspicion. All that's missing from its set of tools (and what's listed above is a very truncated and incomplete list) apparently is the permission to seize communications carte blanche.

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 growing gap between the government’s legal authority and its practical ability to capture communications — or what bureau officials have called “going dark.”    

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Officials have expressed alarm for several years about the expansion of online communication services that — unlike traditional landlines and cellphone communications — lack intercept capabilities because they are not required by law to build them in. What the FBI is suggesting without actually suggesting it is for someone to saddle online communication services with the same built-in intercept points the FBI has enjoyed for years with more traditional communication services.

Unfortunately for the FBI, now is not the time to be asking for more access. Everyone's trying to build surveillance-proof technology and the FBI is concerned this will usher in a new wave of criminal activity by placing bad guys several steps ahead of investigating agents. The FBI would probably like CALEA (the law that forced broadband and internet phone services to provide the same wiretap access as traditional phone services) to be updated to include a variety of instant messaging services and other software that routes around law enforcement-friendly intercepts/backdoors.

The problem is that the FBI isn't going to find many legislators (beyond the usual surveillance state cheerleaders) to back it up. So, it's apparently just going to complain loudly about it until someone feels motivated to do something about it. The FBI complains about encryption even though the US Courts' wiretap report showed that law enforcement rarely, if ever, runs into this. (Federal government agencies have only run into it 52 times in the last decade and defeated the encryption every single time.) Still, its reps say this nearly nonexistent problem is a "big challenge."

Those sitting between the FBI and tech companies are stopping just short of rolling their eyes at these agency reps' pained statements.

“The reality is law enforcement and governments have a dozen methods other than wiretaps to get the investigation material they need,” said Mike Janke, chief executive and cofounder of Silent Circle, a firm that provides encrypted phone and instant message services, and a former Navy SEAL. “They don’t need to have access to everything in the world.”

The FBI still has plenty of tools to use, including the court system itself, which could be used to compel cooperation from services not covered by CALEA. This is in addition to whatever techniques and tools it's currently using, some of which have yet to be exposed. The agency has plenty of funding and the access to cutting-edge technology. Despite this, the agency seems to be calling for a legislative fix and its top officials are already delivering impassioned talking points about the crime wave just over the horizon.

“All we’re trying to say is, in the world today, we’re facing this problem,” FBI General Counsel James A. Baker said. “We don’t have a solution. We have a problem that is real and is impacting the lives of real people, of victims of crime on a daily basis. ”By not overtly calling for a legislative fix, the FBI is making a small nod toward the "safety vs. privacy debate." But it sounds almost identical to statements made by other pro-surveillance proponents. The FBI seems to think the real issue here is that the public isn't sufficiently fearful. It shares this attitude with too many government entities to count.

The FBI isn't losing the tech arms race. With its budget, informants, national security letters, subpoenas, advances in surveillance tech, etc, the FBI has the jump on far less organized and less powerful criminal enterprises. The DOJ used this same faux concern during its oral arguments in support of warrantless phone searches. It didn't work out for it then and, hopefully, the FBI's poor-us bitching won't work out for it now.     

Raise Concerns With the FBI and They May Harass You For Years
By Zenon Evans

Syed Abid Iqbal, a Florida resident, may have gotten more than he bargained for when he voluntary talked to the FBI. After tipping the agency off about some concerns, Iqbal alleges that he found himself in an interrogation room for six hours and subject to years of surveillance. He has pressed charges against the agents who he claims violated his Constitutional rights.

On December 2, 2008 Iqbal went to the Jacksonville FBI office to express “concerns about his friends and acquaintances,” according to a document from the U.S. District Court Middle District Florida. Courthouse News writes, “What Iqbal did not know at the time was that the FBI agents believed his concerns were related to their ongoing investigation of a 'planned attack,'” and believed that he might know more than he was letting on and that he sent a suspicious email to the Transportation Security Administration (TSA). Their claim has never been substantiated.

A few days thereafter, the FBI requested that Iqbal return to the office, at which point he met more agents. They requested he take a polygraph test. Agent Terry Wetmore interrogated him, asking about the TSA email. Iqbal denies  having sent it, and alleges that Wetmore told him he failed the test and couldn't leave until he admitted to emailing the TSA. Then, Wetmore refused to let Iqbal leave, “subjected [him] to enhanced interrogation technique[s],” while threatening to “charge him with a criminal offense.” This went on uninterrupted for six hours, but Iqbal's problems didn't end there.

The court document details his claims about their actions thereafter:

FBI agents began conducting warrantless electronic surveillance of Plaintiff at his home. The agents monitored Plaintiff’s personal and business phone conversations, emails, and text messages. Plaintiff alleges that the agents additionally used his “personal phone . . . as a transmitter which permitted recordings anytime anywhere Plaintiff was present.” The surveillance lasted until January 2011, and agents confirmed that the information collected included the structure and contents of Plaintiff’s house, the content of his personal and business calls, and his travel information.

The agents' continued harassment allegedly also included threats of violence, revocation of his American citizenship, and deportation. “The physical and psychological pain inflicted by the FBI allegedly led Iqbal to lose his job as an IT professional and enter bankruptcy,” explains Courthouse News.

Judge Roy Dalton Jr. has dismissed several of Iqbal's charges, stating that his claim that excessive force was used against him failed to demonstrate a “specific constitutional right allegedly infringed by the challenged application of force.” According to Dalton, the plaintiff's claim that the FBI violated his Fifth Amendment right to due process falls short because the agents' interrogation techniques were was not so coercive that they could “shock the conscience in the constitutional sense.”

However, the case will move forward. The judge acknowledged that the “alleged warrantless intrusion into that privacy violates the Fourth Amendment” and Iqbal's right to “privacy in conversations and religion practices conducted in his own home.”     

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