04/09/2013 12:20 pm ET | Updated Jun 09, 2013

They Can Run, But Should We Let Them Hide?

Imagine a small group of highly trained fighters join the fray in a modern war zone armed with only medieval weapons and communication devices. The advanced technology of the enemy would easily overpower the soldiers despite their expertise. For the FBI, this scenario represents a familiar reality. As it currently stands, the agency may access real-time communications occurring via email and other such data. However, the FBI's ability to monitor real-time communications occurring via online networks like Skype, as well as file-sharing platforms and cloud services, remains limited.

Andrew Weissman, the general counsel for the FBI, recently identified the need to update existing surveillance law in order for law enforcement agencies to investigate the online communications and activities of suspected criminals in real-time. The agency considers the capabilities gap so severe that it refers to the problem as "going dark" since it misses potentially vital intelligence information through countless online exchanges.

The Communications Assistance for Law Enforcement Act (CALEA) currently allows the FBI and other law enforcement agencies to conduct real-time monitoring of communications occurring via telecommunication companies. The surveillance law does not provide law enforcement with the ability to require online providers of communications to build such technologies for use in criminal investigations. Updating the law to include such real-time services would empower the FBI to effectively wiretap Internet exchanges.

So why all the fuss? Concerns regarding real-time government surveillance are deep-seated and expansive. And yet, there is another side to this story. Society has moved from sitting at the kitchen table talking on the phone connected to the wall, to walking around the house on a wireless phone, to talking on cell and smart-phones, to talking today through online and cloud based services. And the criminals have done exactly the same. And herein lies the FBI challenge -- the inability to wiretap this new form of communication to protect the public from the criminal element.

Is there a middle ground? Amending long-standing legislation can be quite the challenge. As an industry, we can build technologies to do all sorts of great things in the world. Perhaps it is time for us to build the ability to conduct such court ordered wiretaps when the FBI comes calling. Criminals know when to run and where to hide. As a society that demands a safe community to live in, should we give them such shelter?