WASHINGTON-A new anti-crime bill would streamline law enforcement’s ability to clone numeric pagers and raise the legal standard for location-based mobile phone wiretaps, changes designed to fight drug trafficking and other illegal activities that have proven controversial for industry, Congress and the Justice Department in recent years.
The clone pager and mobile phone tracking wiretap provisions are included in a sweeping anti-crime bill sponsored by Senate Minority Leader Tom Daschle (D-S.D.) and Sens. Joseph Biden (D-Del.), Charles Schumer (D-N.Y.), Richard Durbin (D-Ill.), Barbara Boxer (D-Calif.), John Breaux (D-La.) Hillary Rodham Clinton (D-N.Y.), Jon Corzine (D-N.J.), Jay Rockefeller (D-W.Va.), Carl Levin (D-Mich.), Tim Johnson (D-S.D.), John Kerry (D-Mass.) and Edward Kennedy (D-Mass.).
The eavesdropping measures, included under a bill section entitled `Gang Paraphernalia,’ are tied to a long-running battle between the wireless industry and the Justice Department over the implementation of 1994 digital wiretap legislation, known as the Communications Assistance for Law Enforcement Act (CALEA). More recently, digital wiretap issues involving Internet communications have proven controversial in industry and privacy circles and on Capitol Hill as lawmakers scrutinize the FBI e-mail sniffing surveillance tool, called Carnivore. Carnivore has major privacy implications for the mobile industry as wireless and Internet technologies converge.
Last year, a federal appeals court here upheld law enforcement’s ability to track suspects using cell-phone information and ordered the Federal Communications Commission to better justify digital wiretap rules. It is unclear how close the FCC is to issuing a new order. The agency was not immediately available for comment.
Wireless carriers and privacy advocates oppose law enforcement’s ability to readily secure wireless location information under the existing legal standard.
Under the current statute, law enforcement can obtain tracking information by telling a judge the information is relevant to an existing investigation. The omnibus anti-crime bill would require a finding that there is probable cause that the mobile phone user “is committing, has committed, or is about to commit a felony offense.”
As location-based wireless technology is developed for 911 and mobile commerce, law enforcement will want carriers to provide information on the whereabouts of suspects.
“I think that because of the sensitivity of carriers being able to provide very specific location information about cellular subscribers law enforcement should be held to a higher standard. It should not be probable cause, however,” said Mike Warren, director of TeLEA (Telecommunications and Law Enforcement Associates), a consulting firm. Warren was the former chief of the FBI’s CALEA implementation section.
Warren noted that March 12 is the deadline for wireless carriers to comply with digital wiretap capacity requirements of CALEA. Failure to meet capacity guidelines can result in $10,000-a-day fines for wireless carriers.
Travis Larson, as spokesman for The Cellular Telecommunications and Internet Association, said wireless carriers support the probable cause standard for mobile phone tracking wiretaps. “As a larger issue, we want to ensure that individual privacy is protected.”
The clone pager issue arose in 1998 when the Clinton Justice Department weighed in against a bill pending before House Judiciary Committee. The bill would have lowered the standard for obtaining a search warrant for numeric clone pagers.
“As an agency that frequently faces problems from legal standards that distinguish among functionally similar technologies, we are very concerned about proposals, such as this one, that would subject some classes of wireless electronic communications to a lower standard than other electronic communications,” said then-Acting Assistant Attorney General Ann Harkins in a May 20, 1998, letter to House Judiciary Chairman Henry Hyde (R-Ill.).
In the same letter, Harkins added, “We were unaware of any law enforcement need for such authorization and believe that the proposal is unwise as a policy matter … and raises significant constitutional concerns under the Fourth Amendment.”
Rob Hoggarth, senior vice president of government relations of the Personal Communications Industry Association, agreed that the clone pager proposal in the anti-crime bill is constitutionally suspect.
“What it ignores is that telephone numbers are part of a message,” said Hoggarth.
The problem, according to Hoggarth, is that the legal standard for law enforcement to use a clone pager is no different than what is required for obtaining phone numbers.
