May 11, 2011 | By Jennifer Lynch

New Department of Justice Documents Fail to Justify Expanding CALEA

Earlier this month the FBI, DEA and the Department of Justice Criminal Division responded to our FOIA litigation for records related to the Department of Justice’s controversial efforts to push Congress to expand the Communications Assistance to Law Enforcement Act (CALEA).1 Although the agencies stated in their court filings (here, here, and here) that they had thousands of pages of records, so far they have only turned over a few hundred pages (and the DOJ Criminal Division has yet to give us any documents). The documents we received — emails, briefing documents and powerpoint presentations — are heavily redacted and still fail to provide any specific details—including technical details — on the purported surveillance problems the government claims require expanding the law.

We discuss the FBI’s documents below and will be writing more about the DEA’s documents in a later post. (As noted, the DOJ Criminal Division has failed to release any documents so far.)

The FBI produced several hundred pages of heavily redacted documents and completely withheld several hundred pages more. As we mentioned in an earlier post about FBI lying to a federal court in another FOIA case, the Bureau has claimed much of the information in these documents is “outside the scope” of EFF’s FOIA request—even though it appears that the material blocked out directly relates to the subject of our request (see example).

Nevertheless, the information we can read in the documents still fails to make the case that the FBI needs any expansion to CALEA, much less back doors into our communications services like Skype, Google Talk or Blackberry.

While several emails and slides discuss at a high-level the problems the bureau is facing, the FBI has still withheld important information that would flesh out the details of these problems. For example, several emails discuss a company or companies that may not be complying with intercept orders (see, for example, EFF/Lynch 25-26, 29, 33 and 402). However, the FBI has redacted important information about the problems it has faced and the name(s) of the compan(ies) involved. This is also true for several presentations we received, as well as a counterintelligence memo sent to 13 branch offices. For example, a slide titled “Challenges and constraints faced by Law Enforcement” (EFF/Lynch 76) is almost completely blank. Similarly, the “recent examples” section of several slides titled “Legislative and Policy Challenge” (EFF/Lynch 95-102), has been blocked out (see example above). And all pages of the counterintelligence memo, which cryptically mentions a VoIP provider that could be Skype, are either almost completely redacted or withheld in full. (see EFF/Lynch 275-285)

In at least two of the redacted presentations released to EFF, the FBI appears to have provided the documents in their entirety to organizations outside the federal government, raising the question of whether the Bureau properly withheld the information in its release to EFF. These include a presentation to the National District Attorneys Association in April 2010 (EFF/Lynch 85) and another to the Association of Prosecuting Attorneys at the “6th National Community Prosecution Conference: The 21st Century Prosecutor.” (EFF/Lynch 131-137). Several of these slides were redacted partially, while several more were withheld in full—despite the fact that it does not appear these conferences were closed to the public.

The documents FBI released recently in response to our “Going Dark” FOIA request are even less informative. For three separate documents, the agency has only included the cover page, including a whitepaper from July 2008 titled “‘Going Dark—Law Enforcement’s Need to Preserve Lawful Interception Capabilities” (Going Dark 1443) and two attachments to a redacted document titled “The Going Dark Initiative” that discuss specific legislative proposals in response to the “Going Dark Problem.” (see Going Dark 146) In each case, all pages that might possibly explain the FBI’s rationale and need for “Updating and Improving Federal ELSUR [Electronic Surveillance] Laws and Assistance Mandates” have been withheld in full. (see Going Dark 147-148).

Finally, the FBI has redacted important information from a questionnaire on surveillance activities that appears to have been shared with Congress and was intended to include only “high-level unclassified information.” (Going Dark 59-67)

It doesn’t appear from the records we have received so far (at least from the parts that aren’t redacted) that the agency has been crippled by the “Going Dark Problem” or that “the bad guys” have gotten away. In fact, in the two concrete examples not fully redacted (and these are the same examples FBI Director Mueller used to justify his call for expanding CALEA in an October 2010 speech) the agency was ultimately successful. In “Operation Achilles” the FBI “broke up an international online child porn and exploitation ring in 2008 that used anonymizers and encryption services to conceal their activities.” And in a cocaine bust that suffered from electronic surveillance problems “creat[ing] delays and prevent[ing] the interception of pertinent communications,” the agency was still able to obtain an indictment. (EFF/Lynch 130).

The records we have received fall far short of justifying any amendment to CALEA, much less the broad expansion the Department of Justice appears to be seeking. Without any specific details about the agency’s claimed problems trying to execute intercept orders, Congress and the public should be wary of any claim that expanding CALEA to apply to additional electronic communications service providers is an appropriate solution to the FBI’s supposed "Going Dark" problem.

The documents referenced in this blog post are available below. You can also check out all the documents from the case on our main CALEA FOIA page.

  • FBI's First Release of Documents Responsive to EFF's CALEA FOIA Request (pp. EFF/Lynch 1-285).
  • FBI's Second Release of Documents Responsive to EFF's CALEA FOIA Request (pp. EFF/Lynch 290-366).
  • FBI's Final Release of Documents Responsive to EFF's "Going Dark" FOIA Request.
  • 1. CALEA currently requires telecommunications and broadband providers' systems to be technically capable of complying with intercept orders. Law enforcement has been lobbying for Congress to expand those requirements to require surveillance backdoors into any electronic communications service offered over the Internet, be it Gmail or Facebook or Skype or any other.
  • 2. These pages refer to the numbers at the bottom of each page in the FBI's CALEA documents.
  • 3. These pages refer to the pdf page numbers in the FBI's "Going Dark" documents (unlike with the CALEA documents, the FBI did not individually number the pages).

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