August 28, 1999

New Rules Expand Ability of Police to Monitor Talk on Cell Phones

By STEPHEN LABATON

ASHINGTON -- Over the objections of civil liberties groups and privacy advocates, the federal government Friday announced new technical standards for cellular phones that will broadly expand the ability of law enforcement agents to monitor conversations and locate criminal suspects.

Related Articles European Parliament Debates Wiretap Proposal (May 7, 1999) Cellular Phone Groups to Sue Over Wiretapping Regulations (April 24, 1998)

Federal and local agents can already monitor cellular phone calls after obtaining a court warrant. But under the rules announced Friday by the Federal Communications Commission, they will also be able to determine the general location of a cell phone user by identifying which cellular antenna was used by the phone company to transmit the beginning and end of any call under surveillance.

The rules will permit agents to identify all callers on a conference call and monitor such conversations even after the target of the inquiry is no longer part of the conversation. And they will enable agents to determine whether suspects are making use of such common cellular phone features as call forwarding and call waiting.

Although the number of intercepted communications approved by federal and State courts over the last decade has nearly doubled, reaching 1,329 last year, law enforcement officials say they have had difficulty keeping up with the explosive popularity of cellular phones. Senior officials at the FBI have spent years seeking new authority beyond just monitoring the calls as mobile phones have become inexpensive and ubiquitious.

At the same time, privacy advocates have warned that broadening the ability of law enforcement to monitor more than simply the content of such calls would be deeply intrusive. Law enforcement officials have asserted that since the location of wired telephones was already public information, there is no intrusion of privacy in determining the location of wireless phones.

The telephone industry was also resistant to change and had sought to delay some of the technical changes in their systems that were announced Friday on the ground that they would be too expensive to implement. Industry executives said Friday that they would be unable to meet the regulators' timetable and thus would seek permission to delay complying with the new rules.

Friday's ruling was a clear victory for the law enforcement groups and a setback for the privacy organizations. The decision follows years of fruitless negotiations between the phone companies, the Justice Department, privacy groups and telecommunications regulators that began in 1994, after Congress approved major legislation called the Communications Assistance for Law Enforcement Act.

A ruling is a setback for civil liberties groups and privacy advocates.

It required the cellular phone industry to design its systems to comply with new standards that would make it easier for the FBI to monitor calls. But the law left it to the FCC to determine the precise contours of those standards, as well as the FBI's ability to monitor more than just the conversations.

Industry executives said that while they believed the new rules went beyond what was authorized in the law, they would comply with them.

"The wireless industry now can build and implement these capabilities, but we require a realistic deployment schedule, one that the industry can plan for and meet," said Tom Wheeler, president of the Cellular Telecommunications Industry Association. Some of the rules become effective next June 30, and others on Sept. 30, 2001.

Senior officials at the Justice Department, meanwhile, applauded the rules, saying they would be a powerful new tool in combatting crime.

"The continuing technological changes in the nation's telecommunications systems present increasing challenges to law enforcement," Attorney General Janet Reno said. "This ruling will enable law enforcement to keep pace with these changes and ensure we will be able to maintain our capability to conduct court-authorized electronic surveillance."

Louis Freeh, the director of the FBI, said the decision by the FCC was "an extremely important and positive public safety ruling."

"From the FBI's perspective, the FCC's announced ruling goes a long way to balance public safety, privacy and the needs of telecommunications carriers to remain competitive in today's market," Freeh said.

Officials at the FCC said they had struck the appropriate compromise between law enforcement interests against privacy concerns.

"We have carefully balanced law enforcement's needs against the rights of all Americans to privacy, and the cost to industry of providing these tools to assist law enforcement," said William Kennard, the FCC chairman.

But civil liberties and privacy groups said the decision would yield a sweeping new intrusion into privacy rights and expressed alarm that telecommunications policy-makers had largely ignored their concerns.

"We are deeply disappointed that on all the issues that mattered, the commission ruled against privacy and in favor of expanded FBI surveillance," said Jim Dempsey, senior staff counsel for the Center for Democracy and Technology, a civil liberties group that studies technology issues.

David Sobel, the general counsel of the Electronic Privacy Information Center, said today's rules reminded him of the way totalitarian countries relied on authoritarian figures to impose their most important policy issues.

"This represents an unprecedented expansion of law enforcement," Sobel said. "We have reached the point where law enforcement is dictating our nation's telecommunications standards."

Sobel asserted that the 1994 law never envisioned tracking the location of cellular phone users, and that senior administration officials had even testified at the time and issued assurances that they had no intention of seeking what he called "such a massive intrusion of privacy."

While the new rules will only enable law enforcement agents to locate a cell phone user within the radius of an antenna -- an area that is anywhere from a few city blocks to a few miles -- new technology that is being developed may ultimately permit greater precision.

The FCC is in the midst of developing rules that would require the use of technology more closely pinpointing cell phone users who dial 911 for emergencies. Those rules are expected to be completed later this year. And a number of phone companies are using technologies based on global positioning satellites now used for navigation systems in planes, cars and boats that enable pinpointing a location to within yards.