sult, there are a wide variety of other cases of network surveillance: about users who try
to get around surveillance but end up exposing themselves to different sorts of surveillance in unexpected ways, about the collection of extensive user data without meaningful consent for targeted advertising, and about how criminal organizations exploit
the trust model of the network to facilitate illegal surveillance.
The U.S. Communications Assistance for Law Enforcement Act (CALEA) requires
that telecommunications companies have the ability to respond quickly and fully to
wiretap requests even when using the newly digital telephone switches. The current
interpretation of this law includes not only traditional telephone service but also Internet telephone services like Skype and, pending a ruling by the Federal Communications Commission, maybe even sender and recipient data for all Internet traffic. Such
a ruling would render CALEA in a sense analogous to the EU data retention directive.
The FCC has ruled that ISPs can forward their entire data stream to independent
‘‘trusted third parties’’ to handle the wiretapping implementation, exposing data
streams of entire ISPs to these third parties. 2
More intrusively, the National Security Agency (NSA) is apparently mining the full
stream of data passing through major ISP backbones in the United States. 3 There are
limits to our understanding, as laypersons, of this process, for obvious national security
reasons. We know that the equipment used for this surveillance is capable of executing
highly sophisticated queries on the data passing through the backbone. We know that
the NSA is engaged in some level of warrantless surveillance of the international communications of U.S. citizens, but we do not know precisely what is being done with the
data. 4 We are left with indeterminate, circumstantial evidence about the existence and
function of the surveillance that leaves unanswerable questions about what data the
NSA is making available to whom.
Relakks is one of many proxy tools available on the Internet that encrypts and
reroutes traffic to avoid monitoring or filtering by anyone, such as the NSA, monitoring
the user’s local ISP. When someone in China uses Relakks to request a page from the
BBC, the connection goes from the user’s ISP in China to Relakks in Sweden (where
Relakks is hosted) and then from Relakks in Sweden to the BBC in Britain (and back
along the same route). The Chinese ISP can only see a connection to Relakks in Sweden, hiding the ultimate destination of the request (and bypassing any filtering as
well). But in 2008, Swedish lawmakers authorized the the Fo ¨rsvarets Radioanstalt
(FRA), or National Defense Radio Establishment, a government agency responsible for
signals intelligence, to monitor the content of all international Internet and phone
traffic (including that of Relakks) without a warrant, requiring all Swedish ISPs to
install FRA monitoring equipment. 5 Now, Relakks users (at least, those who do not follow Swedish politics) are unwittingly handing their complete Internet data streams
over to the Swedish government as they seek to avoid monitoring on their own local
networks.
The EU Data Retention Directive in an Era of Internet Surveillance
37
to get around surveillance but end up exposing themselves to different sorts of surveillance in unexpected ways, about the collection of extensive user data without meaningful consent for targeted advertising, and about how criminal organizations exploit
the trust model of the network to facilitate illegal surveillance.
The U.S. Communications Assistance for Law Enforcement Act (CALEA) requires
that telecommunications companies have the ability to respond quickly and fully to
wiretap requests even when using the newly digital telephone switches. The current
interpretation of this law includes not only traditional telephone service but also Internet telephone services like Skype and, pending a ruling by the Federal Communications Commission, maybe even sender and recipient data for all Internet traffic. Such
a ruling would render CALEA in a sense analogous to the EU data retention directive.
The FCC has ruled that ISPs can forward their entire data stream to independent
‘‘trusted third parties’’ to handle the wiretapping implementation, exposing data
streams of entire ISPs to these third parties. 2
More intrusively, the National Security Agency (NSA) is apparently mining the full
stream of data passing through major ISP backbones in the United States. 3 There are
limits to our understanding, as laypersons, of this process, for obvious national security
reasons. We know that the equipment used for this surveillance is capable of executing
highly sophisticated queries on the data passing through the backbone. We know that
the NSA is engaged in some level of warrantless surveillance of the international communications of U.S. citizens, but we do not know precisely what is being done with the
data. 4 We are left with indeterminate, circumstantial evidence about the existence and
function of the surveillance that leaves unanswerable questions about what data the
NSA is making available to whom.
Relakks is one of many proxy tools available on the Internet that encrypts and
reroutes traffic to avoid monitoring or filtering by anyone, such as the NSA, monitoring
the user’s local ISP. When someone in China uses Relakks to request a page from the
BBC, the connection goes from the user’s ISP in China to Relakks in Sweden (where
Relakks is hosted) and then from Relakks in Sweden to the BBC in Britain (and back
along the same route). The Chinese ISP can only see a connection to Relakks in Sweden, hiding the ultimate destination of the request (and bypassing any filtering as
well). But in 2008, Swedish lawmakers authorized the the Fo ¨rsvarets Radioanstalt
(FRA), or National Defense Radio Establishment, a government agency responsible for
signals intelligence, to monitor the content of all international Internet and phone
traffic (including that of Relakks) without a warrant, requiring all Swedish ISPs to
install FRA monitoring equipment. 5 Now, Relakks users (at least, those who do not follow Swedish politics) are unwittingly handing their complete Internet data streams
over to the Swedish government as they seek to avoid monitoring on their own local
networks.
The EU Data Retention Directive in an Era of Internet Surveillance
37