WASHINGTON-Lawmakers last week attempted to balance the needs of privacy advocates, who are becoming increasingly concerned about the government prying into electronic communications, with the needs of law enforcement, which claims it is just protecting public safety.
The hearings in both the House of Representatives and the Senate came as Congress returned from an August recess during which a federal appeals court overturned much of the FBI’s wish list for implementing the digital wiretap act.
The House Judiciary constitution subcommittee considered a package of bills that would update privacy protections in the digital age.
The Senate Judiciary Committee examined the use of the FBI’s Internet surveillance tool known as Carnivore.
The FBI’s implementation of the Communications Assistance for Law Enforcement Act has made the ranking member of the Senate Judiciary Committee and a key drafter of CALEA, Sen. Patrick Leahy (D-Vt.), skeptical of the FBI’s conduct and use of Carnivore.
Meanwhile, the Clinton administration voiced its concern about a House bill, the Digital Privacy Act, that would restrict law enforcement’s ability to obtain cell-phone location information.
House bill and location tracking
The House Judiciary constitution subcommittee focused on what type of standard should be in place for law enforcement to monitor electronic communications and to obtain cell-phone location tracking information.
Kevin DiGregory, deputy associate attorney general of the Department of Justice, said that a recent case where a Florida family was rescued using cell-phone location information would not be possible if the House-proposed legislation is enacted. The House legislation changes the burden of proof to probable cause that a cell phone is “being used, or is about to be used to commit a felony offense.”
The D.C. Circuit, to the dismay of privacy advocates, said in its CALEA decision that law enforcement was entitled to the cell site information at the beginning and end of each call.
While the industry had challenged many portions of the CALEA standard set by the Federal Communications Commission, location information was part of the industry interim standard. The industry agreed with law enforcement that such information was akin to a wireline phone where its location is known.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, said he does not believe sufficient protections and notice are in place if a mobile-phone company simply says in its contracts that such information may be given to law enforcement upon proper request.
The House constitution subcommittee plans to mark up its package of privacy bills on Thursday.
CALEA implementation concerns key senator
Leahy said the FBI had “pushed the envelope” when it suggested the punch list items that were overturned by the D.C. Circuit.
In addition, Leahy asked privacy advocates to give him an analysis of the Aug. 15 opinion by the end of this week.
Carnivore has come under attack since its existence first came to light earlier this summer.
Privacy advocates claim it potentially violates the privacy of non-target individuals because their electronic communications must be monitored to sift out the target’s communication.
The FBI says Carnivore is specifically designed to only read the communications of the target and that all monitoring must be done with a court order.
Whether Carnivore does what it purports to do will be the subject of an independent review that the attorney general announced last month. This review was also questioned when a USA Today report said that five universities have refused to review Carnivore because they believe the criteria set out by the Justice Department are too strict.
Representatives of the Depart-ment of Justice appearing before the Senate Judiciary Committee said they could not comment on the USA Today report because the procurement process for the review was still continuing.
The Senate Judiciary Committee also heard testimony from Internet expert Vinton Cerf who said it was a difficult task that Carnivore was trying to accomplish. Cerf, who also said he had been given a demonstration of Carnivore by the FBI, believes that the FBI may be discarding valuable information because of the way packets are transmitted between various points.
