Privacy advocates challenge FBI cell phone tracking

Decrying the ease with which law enforcement agencies may soon be able to track cellular phones and retrieve the contents of cellular and land-line phone calls, three Internet privacy organizations are asking a federal appeals court to suspend rules that would make it unnecessary to obtain search warrants to intercept phone calls.

Rules enacted by the Federal Communications Commission in August govern an emerging form of telecommunications known as "packet mode" communication.

The rules require cell phone service providers to be able to pinpoint the physical locations of cell phones when they are in use. In addition, they require phone service providers to give authorities the packets of information that disclose "call identifying information" — the phone numbers that are being called and numbers from which calls are coming.

The FCC rules are putting into action regulations from the Communications Assistance for Law Enforcement Act, a 1994 law that requires the communications industry to design cell phones and other equipment in accordance with FBI standards to make electronic surveillance easier.

Law enforcement agencies already have the authority to demand information that identifies a phone call as long as it is separate from the call's contents. However, with packet-mode communication technology, data containing the numbers cannot be separated from data containing phone conversations. Thus when police agencies demand phone number data, phone service providers will have to give them data containing conversations as well, said David Sobel, a lawyer for the Electronic Privacy Information Center.

Sobel and lawyers from two other organizations are asking the U.S. Court of Appeals in Washington, D.C., to block the FCC rules. "The FBI is seeking surveillance capabilities that far exceed the powers law enforcement has had in the past and is entitled to under the law," Sobel said. Congress clearly intended "call-identifying information" to exclude call content, the lawyers told the Court of Appeals in a brief.

Equally disturbing is the requirement that cell phone service providers disclose where cell phones are physically located when in use, said Shari Steele, director of legal services for the Electronic Frontier Foundation.

"Everybody should be concerned by the notion that the state is taking on the ability to track its citizens," she said. The American Civil Liberties Union is the third organization challenging the FCC rules.

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