Eric Rosenberg c.2000 Hearst Newspapers WASHINGTON - In what privacy rights advocates say is a significant threat to civil liberties in the digital age, law enforcement agencies may soon be able to turn the cellular phone into a ready-made tool for nosing around in private lives. JJJJJ If a federal rule stands up to a court challenge here, the FBI and local police will be allowed to track a cell phone user's location while monitoring bank and data transactions made with the device - all without the need for a court-ordered wiretap. JJJJJ ``This is a very serious breach of privacy,'' said Barry Steinhardt, associate director of the American Civil Liberties Union in New York. It's the equivalent of ``putting a peep hole in a every new home through which law enforcement can look.'' He said the rule ``means that cell phones become location-tracking devices, which can be used to monitor our movements.'' JJJJJ Nearly 100 million Americans use cell phones. In an era when an ever-increasing amount of communications and commerce - including Internet activity - is conducted over cellular phones, the rule could disrupt a fragile balance between the privacy needs of individuals and the investigation needs of law enforcement. JJJJJ David Sobel, general counsel for the Electronic Privacy Information Center, a watchdog group, said the potential government powers ``raise significant privacy issues.'' The government is ``seeking surveillance capabilities that far exceed the powers law enforcement has had in the past and is entitled to under the law,'' he added. JJJJJ Shari Steele, executive director of the Electronic Frontier Foundation, a privacy oversight group based in San Francisco, said that the proposed rule is ``a really, really big grab'' to expand government's investigative powers. JJJJJ For example, under current federal rules, if investigators want to tap a phone, either a cell phone or a regular one, they must get permission from a judge. As part of the petition for a wiretap warrant, the agency must provide the court with evidence of probable cause that the suspect whose phone is to be tapped is engaging in criminal activity. JJJJJ But under the new rule, law enforcement would gain the additional power to track the approximate location of a cell phone user without having to ask a judge. ``That gives them a tremendous amount of power they didn't have before,'' Steele said. JJJJJ The technology exists to allow investigators to determine the general location of a cell phone user. The country is divided into ``cells'' several miles wide that provide service for cell phone users. By knowing in what cell a call begins and ends, investigators glean a fairly good understanding of a user's movements. JJJJJ The government disagrees with the privacy critics, asserting that law enforcement agencies need to be able to monitor cell phones in order to keep pace with criminals, who are increasingly turning to the devices and to the Internet to conduct illicit dealings. JJJJJ The Justice Department said in a court filing in Washington that privacy interests ``are adequately protected'' under the rule. JJJJJ Meanwhile, the use of wiretaps is surging. In 1999, the number of wiretaps ordered by federal and local authorities on pagers, cell phones, e-mail and faxes increased about 20 percent over the previous year, pushing the total number of government wiretaps to a record 1,350, according to the Administrative Office of the U.S. Courts. The Justice Department accounted for 601 of the court-approved wiretaps. JJJJJ About three-quarters of the wiretaps were used in drug investigations. JJJJJ In one high-profile case last year, federal agents arrested 98 people in a drug-smuggling ring stretching from El Paso to the Northeast. The arrests in part were facilitated by the use of a `roving wiretap'' to track the use of several cell phones used in drug transactions. JJJJJ The FBI recently ran headlong into a major controversy over another digital-age eavesdropping capability known as Carnivore. Carnivore scans the Internet and captures ``packets,'' the standard unit of digital communication that the FBI also is seeking in the cell phone rule. JJJJJ Carnivore, which would be installed at Internet service providers like America Online, scours the on-line activities of a suspect. Members of Congress and privacy groups, outraged that the device gives the FBI access to the entirety of the Internet provider's electronic traffic, assert that the system is rife for potential abuse. JJJJJ At issue in the cell phone case is a proposed Federal Communications Commission regulation issued at the behest of the Justice Department nearly one year ago. It directed that by Sept. 30, 2001, cellular phone companies must be able to provide authorities with the general location of cellular phone users. Under the order, the police may obtain location information based where a call originated and ended. JJJJJ In addition, the rule directs that cell phone companies create eavesdropping-friendly networks for investigators. Without the need for a wiretap warrant, the government wants: JJJJJ - To be able to capture in real time the digits that a cell phone user dials after a call is connected, such as call-forwarding telephone numbers or digits used to access credit card and bank accounts; JJJJJ - To be able to capture so-called ``packet-mode communications,'' which contain the content of a telephone call or data transmission broken down into electronic chunks. JJJJJ The actions ``will help ensure that law enforcement has the most up-to-date technology to fight crime,'' FCC Chairman Bill Kennard said. JJJJJ But a coalition of privacy rights organizations and cellular industry associations, including those mentioned above, is fighting the rule in U.S Court of Appeals for the District of Columbia. A ruling could come as soon as this month. JJJJJ The groups argue that under the proposed rule the ``packets'' containing the actual content of a call could be easily accessed by investigators without a formal wiretap warrant. JJJJJ Theodore Olson, a lawyer who represents the Cellular Telecommunications Industry Association and Center for Democracy and Technology, said, ``Our objection is that the FCC wants the telephone companies to provide information to law enforcement involving content - without a wiretap'' order. JJJJJ ``Law enforcement would get a lot of content under this. They don't get it all, but they'd get a lot,'' Olson said. JJJJJ The government counters that the concerns of privacy groups are overstated. JJJJJ The FCC said in written arguments filed with the court that there should be no concern about using cell phones to obtain the location of suspects. JJJJJ ``Information revealing the approximate location of wireless callers ... is no different from the location information that results from the detection of a telephone number in the landline system,'' the agency said. JJJJJ Stephen Colgate, an assistant U.S. attorney general, added in an interview that investigators have no intention of turning ``cell phones into a real-time homing devices.'' To do so, he said, would require a court-ordered wiretap, and would only be done if absolutely necessary. He cited the example of tracking the movements of a suspected kidnapper. JJJJJ In addition, Colgate stressed that ``packet'' surveillance would not be used ``as a back-door way'' to get a unauthorized wiretaps, as the privacy coalition fears. If law enforcement wants access to the content of cell phone calls, investigators will get the proper warrant, he added. JJJJJ Colgate said that the privacy and industry coalition has an unreasonable fear about ``rogue law enforcement operations'' as epitomized during the long reign of FBI Director J. Edgar Hoover. JJJJJ ``I'm not willing to buy in that we're going to have the Hoover era of the 1950s and 1960s over again,'' Colgate said. JJJJJ Such assurances do little to assuage the concerns of the ACLU's Steinhardt. JJJJJ ``Their arguments come down to this: `Trust us. We are going to get access to information that we are not entitled to, but we won't look at it,''' he said.
