WASHINGTON-A ruling last week from a federal appeals court allowing for law enforcement to obtain cell-site information without a court order means the issue of law enforcement using mobile phones as tracking devices could be hotly debated by Congress when it returns next month for a brief pre-election final session.
The U.S. Court of Appeals for the District of Columbia said the location information contained in the industry standard implementing the Communications Assistance for Law Enforcement Act of 1994 was permissible but that four items of the FBI’s punch list the FCC added last year were not.
It was privacy interest groups, not the wireless industry, that opposed the location provisions. First fighting and losing at the FCC and then fighting and losing at the appeals court, the privacy groups now move their fight to Capitol Hill where privacy issues are gaining steam with revelations of the FBI’s Carnivore program.
David Carle, spokesman for Sen. Patrick Leahy (D-Vt.), ranking member of the Senate Judiciary Committee and sponsor of legislation that would scale back the FBI’s ability to get location information, said privacy legislation is one of the bills-besides necessary appropriations legislation-that could be considered by the Congress before adjournment.
Carle, noted however, that Leahy and Sen. Orrin G. Hatch (R-Utah), Judiciary Committee chairman, would have to reach some agreement on what privacy legislation moves forward. There are currently several privacy-related bills awaiting congressional action. The two originally attempted to draft a bi-partisan bill but that effort failed, he said.
In a win for the telecommunications industry and privacy advocates, the appeals court said the FCC did not properly consider costs and privacy concerns when it added the four punch-list items to the industry interim standard. It sent the issue back to the agency for review.
The ruling did not overly concern Attorney General Janet Reno.
“We believe we can demonstrate that these capabilities should be included in a revised FCC order and that the concerns of the court can be addressed,” said Reno.
The punch-list items included such things as access to the numbers after a caller has placed a 1-800 call and conference call participants. Dialed digit extraction can include credit card numbers and other sensitive information.
Additionally, the FCC said that law enforcement was allowed to know when signalling information, such as call waiting or voice mail alerts, were sent to a subject’s number.
“[The United States Telecom Association] has been concerned that the punch-list items would only serve to impose extraordinary and unnecessary costs on carriers,” said USTA President Roy M. Neel.
In addition to the costs, the industry had said that allowing the punch list items was beyond what Congress intended when it passed CALEA.
The Cellular Telecommunications Industry Association, which had led the efforts on what to include in the CALEA-implementing standard, applauded the court’s ruling.
“The FBI’s attempts to expand its wiretapping capabilities through CALEA has been nothing more than a massive power grab, going well beyond current law without the consent of Congress,” said CTIA President Thomas E. Wheeler.
The FCC was not officially available for comment but one official said the agency read the decision as merely a request by the court to better defend the punch list rather than the punch list not being allowed.
Reno, who said she had yet to read fully the court’s opinion said she would consult with Department of Justice staff before deciding what course of action to take.
Some of the decisions Reno and Justice department officials must make is whether to go forward with the use of Carnivore-an e-mail reading program that allows law enforcement to sift through an Internet Service Providers e-mail programs to gain access to a suspect’s communications. Some read the CALEA decision as limiting Carnivore’s use.
Another decision is whether to give telecommunication carriers and manufacturers more time to come into compliance with CALEA because the standard is once again in dispute.
