Privacy vs. Public Protection

Who can have access to your Internet voice communications and pinpoint your physical location by tracking your cell phone calls?The FBI can, thanks to new Federal Communication Commission regulations. Why? Well, that access is essential in catching criminal activity, says the FCC.But Internet privacy groups disagree. They question how far law enforcement should be able to go when it comes to surveillance, and they've taken their queries to court for a judge's decision.In January, the American Civil Liberties Union, the Electronic Frontier Foundation, and other Internet privacy groups, filed suit against the FCC over its new regulations that allow the FBI to track the physical location of cell phone users and to potentially monitor the content of Internet voice communications -- all without having to get the strict warrants normally needed for criminal surveillance.A Legislative LegacyIn 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA), requiring the telecommunications industry to modify its equipment so that the FBI could continue electronic surveillance as technology changed. Under CALEA, the leaders of the telecommunications industry and the FBI were supposed to work together to create industry standards for new technology.But as negotiations stalled over issues such as cost and deadlines for the new requirements, the FCC was forced to take over. Last August, after a year of input from the FBI, the Department of Justice, and Internet privacy groups, the FCC issued its new standards.The Department of Justice was quick with its praise: "The continuing technological changes in the nation's telecommunications system present increasing challenges to law enforcement," Attorney General Janet Reno said at the time. "The FCC has carefully addressed the needs of law enforcement to combat terrorism, organized crime, and illegal drug activity, while ensuring important privacy protections."But Internet privacy groups are critical. The ACLU and other organizations question just how willing the FBI actually is to protect a citizen's privacy. The groups complain that the FCC's new regulations simply mirror what the FBI has been pushing for since the passage of CALEA in 1994."The FBI was supposed to have a voice, but not a controlling voice," says Barry Steinhardt, associate director of the ACLU. His group and other Internet privacy organizations are suing the FCC over two regulations: one that gives the FBI access to the content of Internet voice communications and one that requires telecommunications companies to provide the physical location of cell phone users to law enforcement agencies.The Trouble with New TechnologyWith telephone communications, the FBI can easily obtain phone records; but to actually monitor phone conversations, it needs a judge to issue a warrant. Internet technology, however, complicates the surveillance issue. With the Internet, voice communications are packaged and sent over Internet lines using a technology called packet-mode communication. Currently, there is no means of separating the information stored in the packets. Thus, with Internet voice communications, the FBI would not only have access to the sender's identity, but also to the sender's message -- all without having to obtain a warrant."The FBI says, 'Trust us; we're the FBI, we won't look at the content,'" Steinhardt says. "None of us believes that."And, given the FBI's history, Steinhardt's lack of trust is not without cause. In 1998, FBI Director Louis Freeh was approaching senators, asking them to amend CALEA to allow the FBI to know the physical location of cell phone users -- without having to get any kind of warrant at all. So far, Congress has not gone that far.And E-Rights For AllIn fact, Freeh's plan may have backfired. Last April, Sen. Patrick Leahy (D-VT), who sits on the Senate Judiciary Committee, introduced an E-Rights bill that would require the FBI to obtain a warrant in order to track cell phone users. The bill is currently in committee. But for now, cell phone users are protected by the FCC's new regulations, which also stipulate the need for a warrant.Despite the warrant stipulations, the ACLU is still suing. "Do we want law enforcement to track our everyday movements?" Steinhardt asks. "Never before has an American industry been required to engage in government surveillance. It's like telling the housing industry to incorporate peepholes in their houses."The FCC refuses to comment directly on the lawsuit, but a spokeswoman says, "The Commission met with all of the interested parties in this proceeding and tried carefully to balance the needs of law enforcement along with the needs of Americans' right to privacy."Down to BusinessThroughout all of this, the telecommunication industry's main concern has been -- not the privacy of its customers -- but the billions of dollars it will cost to upgrade equipment in order to comply with the law. Through its trade group, the U.S. Telecom Association, the industry filed a lawsuit against the FBI and the DOJ in 1998, asking to be reimbursed for the costs of the upgrade.And when the FCC released its new regulations in August, the Association said it was "extremely disappointed" in the new standards because they would be "overly costly for America's local phone companies."Steinhardt says the industry basically "rolled over" on the issue in 1994 and is now paying the price. "They accepted a half million for something they now know is going to cost them billions," he says. "They made a bad bargain."The DOJ responded to the industry's concerns this January, asking Congress for an additional $225 million in reimbursement funds.Vikki Kratz is a freelance journalist and a Shewire contributing writer.

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