FBI director Robert Mueller's testimony to the Judiciary Committee of the House of Representatives on Wednesday gave a tiny glimpse of the future of law enforcement online, and it raised some tough questions about the evolving line between public and private in a networked world.

In a blog post on the hearing, CNet's Declan McCullagh reproduced the most relevant portion of the testimony—an exchange between Rep. Darrell Issa (R-CA) and Director Mueller on the subject of the FBI's role in detecting and stopping illegal activity on the Internet. Issa began the discussion with the analogy of an FBI raid on a bookie, where the Bureau obtains a warrant to get proof of illegal activity. He then moved to the subject of online crimes and the ongoing barrage of cyberattacks on civilian, government, and military targets, asking Mueller what types of legal powers he would need to be able to obtain proof of those attacks in order to bring a prosecution.

Mueller responded with the follow revealing nugget.

I think legislation has to be developed that balances on one hand, the privacy rights of the individual who are receiving the information, but on the other hand, given the technology, the necessity of having some omnibus search capability utilizing filters that would identify the illegal activity as it comes through and give us the ability to preempt that illegal activity where it comes through a choke point as opposed to the point where it is diffuse on the Internet [ed. — emphasis added].





FBI Director Robert Mueller

Let me focus in on the boldfaced comment above and unpack it a bit, in order to expand on the point that I think Mueller is trying to make.

If you read my recent article on US law enforcement's next-generation system for scouring the Internet for child porn, then you know how state and federal officials carry out the detection and evidence-gathering phases of criminal prosecution online. Right now, the different state and federal entities in different locations use different systems to monitor chat rooms, Web sites, P2P networks, and other parts of the Internet for illegal activity. In other words, law enforcement on the Internet is still "local"—not geographically local, but local to a particular type of crime or criminal community.

The spread-out, localized nature of law enforcement efforts is what Mueller most likely has in mind when he refers to illegal activity being "diffuse on the Internet." In different corners of the 'net using different protocols and media, people are committing crimes.

Don't just centralize enforcement; centralize the crimes

One of the FBI's more recent efforts at centrally coordinating the fight against these "diffuse" activities is the Fusion Center, which I described in a recent article as "low-profile, highly secure sites where federal and state officials with top-secret clearance meet in order to collect, analyze, and redistribute information on 'all hazards, all threats.'"

But while Fusion Centers centralize law enforcement efforts, they do not centralize the criminal activity. There are places, however, where such activity is centralized: the backbone hubs located in hosting facilities across the country. All of the Internet's activity, legal and illegal, flows through these "choke points," and the feds, of course, are already tapping those points and siphoning off data.

What Mueller wants is the legal authority to comb through the backbone data that is already being siphoned off by the NSA in order to look for illegal activity.

I'll refrain from opining on the desirability or constitutionality of what Mueller wants to do, because regular Ars readers who follow our national security reporting know our take on this stuff well enough anyway. Instead, I want to point out that this centralization of legal and illegal activity at network hubs will be a persistent part of all of our lives as we live more and more of them online. Thus the government's desire to tap those hubs and filter them for criminal and hostile activity will never go away. The current debate over who gets to do what and how with network hubs is akin to the foundational debates over property and taxes with which we started America, so it's important that we have it in the light of day and that we all participate.