The FBI is asking Congress to make changes in legislation that could give law enforcement agencies easier access to the precise physical location of cellular phone users. But privacy and industry groups claim that the FBI is asking Congress to effectively rewrite a law, giving law enforcement greater surveillance power in the digital age.
The law in question is the Communications Assistance for Law Enforcement Act (CALEA), established in 1994 to give law enforcement agencies access to newer kinds of phone and communications networks while maintaining constitutional checks and balances. It is meant to help the agencies retain surveillance capabilities, such as wiretapping, even as modern communications technology grows and changes.
A report in Friday's New York Times said that FBI Director Louis Freeh last week proposed to the Senate Appropriations Committee that the location of a cellular phone user be provided without a court order in certain "emergencies."
The Center for Democracy and Technology, a privacy-advocacy group, alleges that the FBI's request is part of a bigger plan: to reverse some of the checks and balances it agreed to when CALEA was adopted.
"It's a very audacious move on the bureau's part and one we are strongly opposing across the board," said James Dempsey, senior staff counsel at the CDT. "It's not only about wireless phone location information, but about a whole host of surveillance features -- and about the fundamental question of accountability."
But a government source, requesting anonymity, asserted that the FBI and others only want to establish reasonable legal conditions in the event of any changes to CALEA.
The CDT circulated documents it claimed contained the language of the FBI's proposed amendment. The document's introduction said in part that the proposal sought to amend CALEA to "clarify the requirements imposed on the telecommunications industry in regard to supporting law enforcement's ability to conduct authorized electronic surveillance."
"[CALEA] says that the FBI must allow its demands to be subjected to public scrutiny and that the FBI demands must be balanced with cost considerations and privacy considerations," Dempsey said. "And that's where we are with the FCC right now, and the FBI is asking Congress to cut that off. To take privacy out of the picture, to take cost considerations out of the picture, and simply dictate to the industry."
But the government source said the FBI does not believe CALEA needs to be amended, and has only been discussing a "legislative concept" with staff from the Senate and House of Representatives. However, if Congress was to amend CALEA, the spokesman said the FBI would agree to toughening the requirement for obtaining surveillance clearance. As things stand now, agencies need only demonstrate that their surveillance is relevant to an investigation. The FBI would accept a requirement to show "probable cause."
The Cellular Telecommunications Industry Association also believes that the FBI wants to amend CALEA to expand law enforcement's powers to expand its surveillance capabilities.
Rather than using CALEA to merely keep modern communications technology accessible to surveillance needs, the CTIA says the FBI is trying to expand current wiretap law and remove its checks and balances.
"We don't think the privacy rights as put in the First Amendment should be superseded by FBI requests," said the CTIA's Jeffrey Nelson. "This smacks of an Orwellian kind of atmosphere."
It's "a major, phenomenal step and a phenomenal trashing of the balance that Congress intended," added the CDT's Dempsey.
"What the FBI is really trying to do here is rewrite the digital telephony law," said Nelson, "with a rider to an appropriations bill. They're not only asking for exact physical location on wireless phone users, they're asking for Congress to codify all of the enhanced surveillance capabilities that the bureau is asking for."
