WASHINGTON-The House constitution subcommittee last week passed a bill that strengthens the standard by which law enforcement can get cell-phone tracking information.
Today, law enforcement obtains tracking information by telling a judge that obtaining the information is relevant to a current investigation. Law enforcement’s ability to track suspects using cell-phone location information was recently upheld by the U.S. Court of Appeals for the District of Columbia Circuit.
While the industry had challenged many portions of the Communications Assistance for Law Enforcement Act standard set by the Federal Communications Commission, location information was included as part of the industry interim standard. The industry agreed with law enforcement that obtaining such information was akin to getting that information from a wireline phone, where its location is known.
Privacy interest groups opposed the location provisions, first fighting and losing at the FCC and then fighting and losing at the appeals court.
The groups then took their fight to Capitol Hill, where privacy issues are gaining steam with revelations of the FBI’s Carnivore program, an Internet surveillance tool.
Rep. Bob Barr (R-Ga.), a regular critic of the FBI, added the language to the Electronic Communications Privacy Act of 2000, which was being marked up. Although the chairman of the subcommittee, Rep. Charles Canady (R-Fla.) expressed some concerns about the amendment, he agreed to support it if Barr agreed to work on getting an administration compromise before the House Judiciary Committee takes up the bill this week.
Canady later told reporters he is concerned that the probable-cause standard is too strict and suggested that using the revised standard for pen registers would be better. He feels a compromise with the Clinton administration is necessary if the bill is to pass this session, scheduled to end early next month.
A White House official attending the markup, refused to comment on the location-tracking provisions, but noted that changes to location tracking were not included in an administration bill proposed earlier this summer.
At a Sept. 6 hearing, 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 have been 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.”
Another change to the Electronic Communications Privacy Act would protect e-mail messages that have been sent, but have not yet been viewed by the recipient.
The marked-up bill also reduced the reporting requirements on law enforcement than what originally was proposed.
In other CALEA news, telecommunications industry technical and legal experts met last week to discuss the ramifications of the D.C. Circuit opinion.
“It is critical for the industry to fully examine the aftermath of the court of appeals recent decision,” said Ed Hall, vice president for technology for the Alliance for Telecommunications Industry Solu-tion.
The industry had developed a new standard that included punch-list items requested by the FBI, approved by the FCC, but overturned by the appeals court.
“Further adjustments to the existing CALEA joint standard or decisions to develop an entirely new standard will be decided in coming months,” said ATIS President Susan Miller.
