The proposal, delivered by FBI Director Robert Mueller during a House of Representatives Judiciary Committee hearing on Wednesday, appears to go beyond the scope of an existing plan to supervise traffic on federal government networks. Mueller seems to be pushing for the agency to have the authority to perform monitoring and surveillance of private-sector networks, according to C/Net News.com.
Mueller said the surveillance should include all aspects of Internet traffic, "whether it be .mil, .gov, .com - whatever you're talking about."
Responding to questions from Rep. Darrell Issa, R-Calif., Mueller said his plan "balances the privacy rights of people receiving information on one hand with ... the necessity of having some omnibus search capability, utilizing filters that would identify illegal activity as it goes through, and allow us the ability to catch it at a choke point."
Issa suggested that he would support such legislation, C/Net News.com reported.
If implemented, Mueller's proposal could have implications related to the Fourth Amendment freedom from unreasonable search and seizure. Courts generally have ruled that police must have search warrants to obtain the contents of communications, and the federal Wiretap Act created "super-warrant" wiretap orders that require additional steps and judicial oversight.
It is unclear whether the FBI's monitoring for illegal activity would relate solely to responding to denial-of-service attacks and botnets or also would include identifying illegal behavior such as the distribution of child pornography or obscene adult material, online gambling or distributing pharmaceuticals without a license.
The discussion at the Judiciary Committee hearing for the plan apparently leaned toward cybercrime and the Bush administration's classified "cyberinitiative," which involves a program known as Einstein.
Several politicians have raised concerns that the Einstein program, already in place at 15 federal agencies, is for dealing with government networks rather than private ones and could violate privacy rights.
The Department of Homeland Security has said it is still preparing the necessary privacy-impact assessments for a proposed $293 million governmentwide expansion of the Einstein program.
At the Judiciary Committee hearing, Issa referred to malicious attacks launched by foreign and domestic hackers seeking to "take control of computers" and harvest the national security secrets and private information of government agencies, private companies and individuals, C/Net News.com reported.
"What authorities do you need in order to monitor, looking for those illegal activities, and then act on those both defensively and - either yourself or, certainly, other agencies - offensively in order to shut down a crime in process?" Issa asked.
Mueller said he would invite his legislative staff to work with members of Issa's committee to create a bill for a broader-reaching surveillance system.
Issa implied that the FBI might currently have the authority to seek voluntary private-sector partners that would like to be "defended" by FBI agents. Mueller said "that's going to require some thought."