When You Call, Who Is Listening?

July 9, 1998 • Commentary

Are telephone companies working hard enough to make sure that the government can spy on your calls? “No,” said the FBI, in a recent petition to the Federal Communications Commission. What is now at stake before the FCC is whether Americans may expect privacy for their phone calls. The FBI is demanding surveillance powers going far beyond those it has a lawful right to claim.

At issue is a 1994 law, the Communications Assistance for Law Enforcement Act (CALEA), designed to make the nation’s phone system wiretap friendly. Its genesis lies in the early 1990s, when the nation’s phone companies began to replace old‐​fashioned copper wire systems with digital and wireless systems. The FBI began to complain that wiretaps were impossible to perform on some of the new systems. So Congress passed CALEA to preserve the law enforcement status quo.

The FBI now demands powers far beyond those CALEA gave it. Far from maintaining the status quo, the FBI is using CALEA as a wedge to make Americans subject to a degree of electronic surveillance that would have astonished the KGB.

The technology the FBI demands would let them evade the requirement that police get a warrant to listen to the content of a call. Before CALEA, the police could use a device called a “pen register” to track the phone numbers of outgoing and incoming calls to a particular telephone. In 1979 five members of the U.S. Supreme Court ruled in Smith v. Maryland that the federal Constitution does not require the police to get a warrant for a pen register. (In dissent, Justice Potter Stewart noted that pen registers “reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.” Justice Thurgood Marshall agreed, saying, “Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.”) Given the absence of court supervision, unsurprisingly, pen register use far exceeds wiretap use.

There is no requirement for a search warrant; a curious law enforcement official may order the location surveillance of a portable phone user whenever he wishes.

CALEA requires phone companies to give the FBI access to the same information that old‐​fashioned pen registers provided. But the technology that phone companies propose using to satisfy CALEA would let the FBI use (warrantless) pen register orders to listen in on conversations. Telephone networks increasingly use a technology called “packet switching.” Every message is broken into “packets,” and every packet contains routing information (where it came from and where it should go). But the conversation content and the routing information are part of a single packet. Though technology could be used to isolate the routing information, nothing in the phone companies’ CALEA standard requires them to do so. As things stand now, if the FBI gets access to the routing information in a packet, the FBI also gets the contents of telephone conversations — all without a warrant. Congress intended that to be illegal under CALEA.

Another key issue is the FBI’s demand that cellular telephones become tracking devices. Testifying before Congress in support of CALEA in 1994, FBI director Louis Freeh explained that for wireless phone calls, CALEA would only require phone companies to provide the area code or exchange from which the call originated. (For example, if a person using a portable phone with a Virginia area code made a call while he was in Maryland, the phone company would have to report a Maryland area code.) He said that the FBI had “no intent whatsoever … to acquire anything that could properly be called ‘tracking’ information” under CALEA.

But now, the FBI insists that phone companies provide the precise location where a call originated, letting them pinpoint the caller on a map. Again, there is no requirement for a search warrant; a curious law enforcement official may order the location surveillance of a portable phone user whenever he wishes.

In Congress, Georgia Republican Bob Barr (a former United States attorney) recently introduced H.R. 3321, which would delay by two years the October 25, 1998, implementation of CALEA. He argues that “the FBI has insisted that the industry’s technical standards include requirements for capabilities that go beyond the scope or intent of CALEA.”

Representative Barr is on the right track, but his bill does not get to the heart of the problem. Congress should simply repeal CALEA. Congress should then replace CALEA with a statute requiring that pen registers be used only when authorized by a court warrant.

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