DOJ Secretly Authorizes ISPs to Bypass Wiretap Act

by Matt Klassen on April 26, 2013

A few minor alterations to a voluntary, legal, and fairly straightforward government pilot project designed to monitor the Internet traffic of military defence contractors and suddenly we have senior Obama administration officials secretly authorizing “the interception of communications carried on portions of networks operated by AT&T and other Internet service providers,” a practice normally considered illegal under federal wiretapping laws.

According to documents CNET received from the Electronic Privacy Information Center, the Obama Administration and the Department of Justice have extended the purview of this project to cover all critical national infrastructure, including energy, finance, and healthcare sectors. In order to encourage participation from the private sector, the DOJ has reportedly issued letters granting legal immunity, meaning certain wireless providers have been indemnified against any legal repercussions stemming from their role in this project.

While increased cyber-security surrounding such infrastructure is of vital importance, the problem with these secret backroom shenanigans is that they lack clarity and accountability, as from these initial reports it seems the DOJ has ostensibly given private sector companies like AT&T license to illegally eavesdrop on network traffic under the guise of national security.

The Wiretap Act that is currently on the books in America imposes strict limits on the ability of Internet providers to eavesdrop and surveil network traffic, allowing exceptions when such monitoring is a “necessary incident” of offering the service itself, or it takes place with the user’s “lawful consent.” These secret writs of indemnity, covertly referred to as the “2511 letters” (according to CNET, a reference to the Wiretap Act codified at 18 USC 2511 in the federal statute books) remove these restrictions, with the DOJ promising not to prosecute these companies for the criminal violations of this Act.

Given the fact the letters grant providers the ability to “evade federal wiretap laws” and the fact that its not known how many of these immunity letters were sent, many privacy advocates are bristling with indignation, with Marc Rotenberg, executive director of the Electronic Privacy Information Center, stating that “Alarm bells should be going off,” and everyone should be concerned that Big Brother has just allowed its private sector friends to join in on the lawless surveillance fun.

The documents acquired by the Electronic Privacy Information Center show that behind this order from the DOJ is the National Security Agency and the Defense Department, both of whom were deeply involved in pressing for the secret legal authorization. While the documents states the DOJ and industry participants had reservations about such a project, eventually the Justice Department attorneys signed off, the immunity granted effectively silencing any “moral” opposition from the private sector.

So just what does this mean for you? It should once again be made clear that the scope of this project covers critical national infrastructure only, meaning its not a carte blanche order granting your ISP the ability to randomly wiretap your Internet. With that in mind, one assumes there exists a framework for what constitutes warranted surveillance, and what still constitutes unlawful intrusion…it’s just not clear exactly where those boundaries now lie.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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