Court Throws Out Wiretapping Rules

Wednesday, August 16th 2000, 12:00 am
By: News On 6

WASHINGTON (AP) — The telecommunications industry and privacy groups are applauding a court decision throwing out new phone surveillance capabilities required by federal regulators.

The ruling by a federal appeals court Tuesday dealt law enforcement authorities a setback in their efforts to keep criminals from using such telephone features as conference calls and call-forwarding to thwart surveillance.

The ruling could also have implications for the FBI's new ``Carnivore'' system, which can monitor e-mails.

The court threw out portions of rules adopted by the Federal Communications Commission last year, including one provision that required phone carriers to provide to law enforcement agents all numbers dialed after the subject of a wiretap order connects a call. That was intended to ensure authorities could get the actual number being called, even if a suspect first used a 1-800 number or a calling card.

Privacy groups had argued that the provision could give authorities access to information beyond the scope of the wiretap such as credit card or bank account numbers.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed and sent that back to the commission. Another provision struck down would have given investigators information about parties to a conference call, even if some are put on hold and are no longer talking to the target of the legal wiretap. Authorities also could have determined when someone was using call-forwarding, three-way calling or other features or when that person placed a call even if it was not completed.

Privacy and industry groups welcomed the court action.

``The court told the FCC that it was wrong to give in to the FBI's surveillance demands at the cost of privacy,'' said James X. Dempsey, Center for Democracy and Technology, a privacy advocate.

Tom Wheeler, head of the Cellular Telecommunications Industry Association called the rules ``nothing more than a massive power grab, going well beyond current law without the consent of Congress.''

And the United States Telecom Association warned that the provisions thrown out by the court could have raised phone rates for residential customers.

The FCC's rules, set in place nearly a year ago, helped to implement a 1994 law, after the Justice Department, FBI and the telecommunications industry failed to agree on a plan.

Federal officials expressed hope that the court's concerns can be addressed to keep the rules in place.

``Essentially, we're seeing now folks engaged in criminal activity using those types of technology to thwart law enforcement,'' said Stephen Colgate, assistant attorney general at the Justice Department. He cited calling cards as one way to frustrate investigations.

Tuesday's ruling upheld provisions that require telecommunication carriers to provide information on so-called digital packet-switched communications. In these types of communications, calls are broken up into a number of data packets carrying both identifying information and content. These packets travel different routes on the network and are reassembled at their destination.

Privacy advocates had argued that because the content and the information identifying the caller cannot be separated, the government would get more than a simple trace order allowed.

The court did stipulate in its decision that law enforcement agencies still need lawful authorization to intercept content. That typically would require officials to meet a higher legal standard to obtain a search warrant, rather than just a ``pen register'' trace order.

Privacy groups said the court's assertion could have implications for Carnivore, the FBI's court-approved system for monitoring people's e-mail messages.

``The court has clarified the legal standards that law enforcement must meet before monitoring new modes of communications. The decision calls into question the legality of the FBI's controversial Carnivore system,'' said David Sobel, general counsel of the Electronic Privacy Information Center.

Colgate said the Justice Department will take into account the court's decision as part of its ongoing review of Carnivore.

The court also left intact a provision that allowed police, with a judge's permission, to track cellular phone users by their location at the beginning and end of a call.


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