WASHINGTON-Law enforcement’s ability to use “roving wiretaps” is in doubt following a failed attempt to break a Senate filibuster of the USA Patriot Act late Friday. The House of Representatives had passed a compromise USA Patriot Act extension but the Senate rejected the compromise.
Roving wiretaps allow law enforcement to tap a person instead of a phone. In other words, if a person under suspicion has a wireline home phone, an office phone and a mobile phone, instead of being required to get three wiretap orders-law enforcement can get one wiretap order for any communications device used by an individual. The long-sought-after provision was included in the USA Patriot Act passed in the fall of 2001, but was given a sunset date of this month.
The most controversial aspect of the Patriot Act continues to be the use of third-party records-commonly referred to as the library provision. This provision became contentious shortly after Congress passed the Patriot Act. Civil libertarians and law-enforcement officials offer wildly different opinions about how this provision is used-or not used.
In the meantime, the Department of Justice asked the Federal Communications Commission to give it more time to comment on recently adopted rules that would allow government to wiretap Internet Protocol-enabled services. Comments were due last week. The Justice Department also objected to various IP service providers’ requests that an 18-month deadline be extended indefinitely.
“Requestors object to the setting of any uniform deadline because individual circumstances could require more time for some providers than for others,” said Laura Parsky, deputy assistant attorney general for the Justice Department. “The speculative possibility that particular providers may need additional time is no justification for a wholesale suspension of the compliance deadline with respect to all providers, including those who can readily bring themselves into compliance by the FCC’s deadline.”
The FCC said Aug. 5 that IP-enabled service providers had 18 months to come into compliance with the Communications Assistance for Law Enforcement Act. Civil libertarians and the telecom industry, including VoIP providers, are still waiting to see exactly what the FCC meant when it said that interconnected VoIP was subject to CALEA. The FCC said its decision did not deal with how VoIP should comply with CALEA, just that it should.
On a related matter, a federal judge has agreed with at least two other judges that law enforcement may not track someone using a cell phone without probable cause.
Judge James Bredar, U.S. magistrate judge for Maryland, referred to the other rulings to bolster his decision to deny a Nov. 3 request for a court order that an unnamed mobile-phone carrier disclose “real-time cell-site information.”
Bredar said the government’s “cited authority and the proffer were insufficient.” He later warned that if the government continued to seek tracking data without first obtaining the court’s permission, it would do so at its peril.
The ruling in Maryland comes weeks after similar rulings in Texas and New York. An appeal has been filed in the New York case.
The rules implementing CALEA said that law enforcement was entitled to pen-register information from a cell-phone conversation at the beginning and end of the call. This information would make it similar to a pen register in the wired world, which gives the date, time and number called. Because the location is fixed in the wired world, the location is known.
