Alan Heimlich Law enforcement is often interested in the verbal
communications of persons they suspect of illegal activities because
a case, be it civil or criminal, is so much stronger when the
suspect's own words can be used against them.[1]
There are a wide variety of methods to eavesdrop on
communications.[2]
Several techniques exist for retrieving this type of communication.
They fall into two basic methods, and two basic approaches. The
methods are direct or "wired" listening wherein a 'wire' is run to
the listening device, and "wireless" or "bugs" using radio or laser
transmissions for retrieval of the information. The two basic
approaches are to "tap" the physical locality where the
communications are taking place, or tap or "intercept" the
communications link itself. The former method with the latter
approach is commonly called "wiretap" or "tapping" and is the subject
of this comment. The advent of new forms of verbal communication
beyond the traditional telephone has had a major impact on
wiretapping. The use of mobile telephones, pagers, facsimiles, and
other devices has provided an ever changing challenge to law
enforcement.[3]
The recent expanded use of email, the Internet, and forms of data
encryption have increased this challenge even
further.[4] This comment traces the development of telephony
technology and the closely associated law. Most changes in wiretap
law follow closely changes in telephony capabilities and the two are
inextricably intertwined. Thus effective analysis of the law requires
an understanding of the technological changes and the resultant
capabilities to fully appreciate the possible impacts. This comment then, proposes that because of the
rapid rate of technological innovation, it is imperative that
government regulators work closely with industry so that there are no
major cost increases or disruptions to the communications structure.
Finally, this comment concludes that without strict and precise
legislative language, the current crop of wiretap laws places undue
burdens on communications companies and violates constitutional
guarantees. A. Pre 1934 1. Technology Alexander Graham Bell developed the telephone
while working with the deaf in 1874.[6]
Ironically, he was unaware that the audiotelegraph was working when
he accidentally spilled acid on his trousers and his cry for help was
heard by his assistant Mr. Watson. Thus arguably, the first
communication over this great medium was a wiretap! Early wiretaps consisted of physically "tapping"
into or connecting to the existing phone lines. Much like an
extension phone in a house, wires had to be run from the "tap" to the
listening post. The taps were often physically located close to where
the wires for the tapped phone ran into the house or building. Thus
the wiretap had associated with it implicitly not only the telephone
number, but also the physical locality. In this way, information that
was intercepted not only provided the contents but also the knowledge
of origination. This could be very useful in those cases where an
actual arrest might be needed. One could identify the suspect via the
voice and be assured that they were within a certain building. Next,
tapping locally yielded to taps located on telephone poles. The next
step was to place the tap at the telephone switching center called a
Central Office (CO) in telephony parlance. The central office
connected to all the lines and telephones in its service area. Thus,
it was like a funnel taking in many lines in a wide area and routing
them through the "central office switchboard." A tap could be easily
placed here for any of the telephone numbers the central office
handled. This was a major improvement for law enforcement because it
provided a central location removed from the "tapee" where they could
quickly tap many lines. Additionally, because the central office
handled calls in a known geographical region, it was possible for
government officials to "locate" telephones of suspects and their
physically closely located cohorts. They could readily move from line
to line, temporarily tapping it during a conversation to locate the
"lines" used by suspects and then place permanent taps on these. The
process of locating parties was popularly called a
"trace." The phone system described above where a central
office would connect to a subscriber's phone is called a "switched
circuit." At its most basic it requires an electrical connection from
the callers phone (A) through the callers central office (CO) across
telephone lines to another receiving central office (CO) at the
receiving end to finally the called number (B). See Figure 1. If A
placed a call to C then the "circuit" was "switched" to make the A to
C connection shown in Figure 2. Initially this circuit switching was
done by the operators at switch panels by actually plugging in the
telephone wires. Later electrical relays were used, and finally
electronics. Regardless of the switching mechanism (people, relay,
electronics), there was still a direct "circuit" from caller to
receiver and traditional wiretaps worked anywhere along the entire
circuit. This type of "switched circuit" also transmitted the actual
analog voice signals of the speakers. Therefore, tapping was
basically as simple as connecting another phone into the existing
line.[6] 2. Law The first Federal statute on wiretap law appeared
in 1918.[7]
It permitted counterespionage wiretapping during the First World
War.[8]
Federal wiretaps were then used to assist in prosecution of
violations of the National Prohibition Act.[9]
The wiretap was challenged in 1928 in Olmstead v. United
States.[10]
The sole question before the Court was "whether the use of evidence
of private telephone conversation between the defendants and others,
intercepted by means of wire tapping, amounted to a violation of the
Fourth and Fifth Amendments."[11]
In a 5 to 4 decision with Justices Brandeis, Holmes, Butler and Stone
dissenting, the majority found that the historical interpretation of
the Fourth Amendment was to prevent the use of government force to
search a house, seize a person, papers or effects against the
person's will,[12]
and that wiretapping was not searching or seizure and no entry was
made into a persons house,[13]
nor were any tangible effects taken.[14]
Thus, the Court ruled that "wire tapping . . . did not amount to a
search or seizure within the meaning of the Fourth
Amendment."[15]
The question of the Fifth Amendment violation was dismissed by
claiming that the issue would not arise unless the Fourth Amendment
was first violated,[16]
and noting that defendants had not been compelled to use the phone
but had done so voluntarily and therefore had not been compelled to
testify against themselves.[17] B. 1934-1966 1. Technology Telephony became mainstream and pervasive. The
local lines running from the central office to the telephone were
basically unchanged. Major upgrades in the central office amounted
essentially to electronic switching. The "party line" wherein
multiple households shared a telephone connection to the central
office gave way to direct lines from the central office to the end
user's telephone. Telephone signaling or dialing went from pulse
mode to touch tone, operators were replaced by automatic switching,
and other services were added (hold, transfer, forwarding, etc.).
Companies started installing private branch exchanges (PBX) for
internal telephone networks. Even with all these advances, the
technology to wiretap was basically unchanged from
earlier. 2. Law The decision in Olmstead paved the way to
widespread wiretapping without the need for a court
order.[18]
In reaction,[19]
Congress passed the next major change in the law in the form of the
1934 Federal Communications Act ("FCA").[20]
This prohibited call interception without the consent of one of the
parties.[21]
Here now, wire communications were prohibited[22]
and through a series of Supreme Court decisions, such evidence was
deemed inadmissible.[23]
Electronic bugs and planted microphones came into use and the court
treated them differently than wiretaps, saying they did not violate
the Fourth Amendment.[24] The 1942 case of Goldman v. United
States[25]
held that a bugging device placed against an office wall adjacent to
the suspect was not subject to the FCA because there were no
"communications" or "interceptions" as defined by the
statute.[26]
The Court ruled that absent physical trespass, searches employing
electronic bugs were not in violation of the Fourth
Amendment.[27] Later, in 1954, in the case Irvine v.
California[28]
even microphones concealed in a home were not held in violation of
the FCA,[29]
however in 1961 the Court in Silverman v. United
States[30]
ruled evidence obtained with a spike mike that had been driven into
an adjacent wall, inadmissible.[31] C. 1967-1991 1. Technology In January 1968, American Telephone and Telegraph
("AT&T") announced their designation of 911 as a universal
emergency number,[32]
thus effectively shifting from the local telephone operator to a
centralized public safety agency, the responsibility for emergency
calls.[33]
Also after protracted lawsuits, AT&T agreed to let other
manufactured telephones connect to its network as long as they met
standards set by the Federal Communications Commission
("FCC").[34]
In 1974, MCI Communications Corporation challenged AT&T over its
long distance monopoly. Antitrust proceedings resulted in the break
up of Ma Bell in 1983, and the establishment of the regional bell
operating companies (RBOCs).[35] During this period there were great advancements
made in electronics. With the advent of microelectronics and powerful
computers came the realization that the analog voice signal from the
telephones could be converted to a digital form. Digital signals are
easier to work with. The process of converting the analog signals to
a digital form is done by an analog-to-digital converter (ADC).
Digital signals can be converted back to analog form with a
digital-to-analog converter (DAC). While analog signals have
different amplitudes or volume, digital signals are either on or off
and are represented by ones (1) and zeros (0). Suffice it to say,
that in theory and practice, it is possible to digitally represent
exactly any analog signal (witness the compact musical disk
(CD)). The digital converters are located at the central
offices and communication between central offices is done via digital
signals as shown in Figure 3. If this was the totality of the changes
by going to digital then we could have "analog" taps at the central
and "digital" taps along the central office to central office
connection which is called the backbone. One of the benefits of
having signals in digital form is that they can be easily
manipulated. The backbone connection is required to carry many
telephone calls collectively referred to as traffic. Rather than
having a direct connection from central office to central office
carrying only a single conversation, it is possible to have it carry
a series of conversations simultaneously. A set of telephone
conversations can be "grouped together" (called multiplexing) and
sent over the backbone. At the other end the group is "split apart"
(called de-multiplexing) and sent to the correct respective
telephones. This grouping of signals makes a wire tap on the backbone
more difficult because the "grouping" changes based on the users
(calling different numbers) at both ends. There is no longer a single
dedicated channel from the caller to the receiver. Even given this
additional difficulty, it is possible to tap the lines and select the
"targeted" one. The backbone is a precious resource because it
carries many telephone conversations and is often a long distance
connection. Economics dictate maximum use of any capacity on the
backbone. This capacity to carry calls is called bandwidth. Now on a
long distance call, there may be a series of "switching centers" that
could route a call from point A to B based on traffic congestion
(trying to use the least crowded lines). In Figure 4, the connection
is made by A-D-E-G-B. Suppose we set a tap at E recording a
conversation. Another possible route is A-D-F-G-B as shown in Figure
5. If this route is taken then the tap at E receives nothing. Clearly
we need information on how the signal is being routed and we need
taps at those places! Even with the routed connection going from A to
eventually B through other locations, the route was constant for the
duration of the telephone conversation, that is we had a "circuit."
Enter the digital age where the concept is that of converting the
analog to a digital signal, splitting it up into "packets" of data,
sending the packets on any route possible, "reassembling" the
packets at the other end in the correct order and delivering the
data. "Packets" typically represent only a short part of the
conversation (less than a second). So, in Figure 6, 100,000 packets
from 100,000 users (representing one second of all these
conversations) might get routed from C-D-E-F, in the next second the
packets might go via C-G, the third second they might go via D-E, and
so on. This is called "packet switching." We no longer have a
dedicated "switched circuit" as described above, but instead a
virtual circuit based on "packet switching." The complexity of
wiretaps on the backbone has greatly increased. 2. Law The earlier distinction, where the courts had
treated electronic bugs and planted microphones differently than
wiretaps, saying they did not violate the Fourth
Amendment,[36]
was overturned in 1967 in Katz v. United
States.[37]
The Court held inadmissible evidence obtained from a listening device
in a public telephone booth.[38]
The court decided to protect the person's reasonable expectation of
privacy in communications rather than a physical location. That is,
the Fourth Amendment protects people, and not places,[39]
and in this case, the unauthorized wiretapping violated the
defendant's reasonable expectation of privacy and so constituted a
"search and seizure" within the meaning of the Fourth
Amendment.[40] The restrictive ruling in Katz, gave rise
to the Omnibus Crime Control and Safe Street Act of
1968[41]
("1968 Act").[42]
Title III of the 1968 Act established procedures for "interceptions"
for criminal investigations and listed a series of crimes which
wiretaps were limited to.[43]
Congress amended the 1968 Act by passage of the Electronic
Communications Privacy Act of 1986 ("ECPA")[44]
because of improvements and advances in telecommunications
technology.[45] D. 1992 Onward 1. Technology Once voice is in digital form, it is easy to send
it to its destination via any route that works. That is, it is
not necessary to send voice communications over a telephone
network. Being in digital form it is no different, transmission-wise,
than say documents, faxes, video, music, TV, radio, email, etc. All
these signals can be sent over the Internet. In fact, the trend is to
use any network, whatever it was originally designed for, to send
digital signals. The Internet, can handle all these signals
simultaneously, and dynamically route each small part of the
communication over possibly thousands of different computers to reach
the final destination. Despite the complexity, it is very cost
effective. Unfortunately, the complexity of tapping a signal in this
environment is expensive and can be extremely difficult. The use of cell phones started to rise rapidly and
presented a new set of challenges. In the earlier scenarios we could
always tap at the origination (A) or destination (B) telephone
because they were "wired" and permanent. However, if A and B are cell
phones and are moving, then they are picked up by different "cells"
or antennas for the mobile phones as they travel. These connections
from the "cells" into the phone lines are not through the same
central office. They are different as the mobile phone call is handed
from "cell" to "cell." We now are unable to tap at a fixed central
office. The varying central office (potentially at both ends if both
are using cellular and moving) and the digital packet switching
described above, results in a large time varying "network
connection." The ability to effectively wiretap in this scenario is
complex and costly. 2. Law With the advent of digital telephone switching as
detailed above, plus the widespread availability of computers, the
wiretap community faced a series of challenges not only in the
interception of signals but also because of encryption, the very real
prospect that intercepted communications could not be decoded and
comprehended.[46]
The EPCA had failed to adequately address the rapidly changing
technology such as new wireless data communications, cellular laptop
computers, and wireless local area networks (LANs).[47]
Against this background, a series of government initiatives were
introduced to allow tapping and decoding capability.[48]
The Federal Bureau of Investigation ("FBI") was concerned about the
increasing difficulty to tap and locate calls.[49]
They prepared a legislative proposal in 1992,[50]
and a revised version called the "Digital Telephony and
Communications Privacy Improvement Act of 1994" was submitted to
Congress in March 1994.[51]
President Clinton, under intense lobbying pressure from FBI Director
Louis Freeh, signed a revised version called the Communications
Assistance for Law Enforcement Act of 1994 ("CALEA") into law October
1994.[52] On another front, which will become relevant
later, the FCC was considering expansion of the 911 emergency
capability. The impetus was again related to advances in technology.
Specifically, whereas 911 calls from fixed wired phones provided
location information, the same was not true for wireless which was
becoming more popular. To address this, the FCC first proposed an
Enhanced 911 System ("E911") in 1994.[53]
After modifications, the FCC adopted rules of E911 service in June of
1996.[54] The FBI had also been lobbying Congress for
expanded wiretap authority in the form of a "roving wiretap." A
roving wiretap is where law enforcement taps any telephone used by or
near to the suspect.[55]
Congress openly rejected the idea in 1995[56]
and 1996,[57]
however, in 1998 it was added by a conference committee even though
it was in neither the House or Senate version before the
committee.[58]
With the new communication models brings
challenges and new expanded capabilities. It is not clear if the old
model of wiretap is technically feasible. The costs associated with
fulfilling full wiretap capability may be prohibitive. If such a
wiretap ability is implemented, then it would permit eavesdropping
via a long distance wiretapping capability. This capability presents
possible problems of great abuse as the wiretaps could be established
to any phone in a matter of seconds. Additionally, the new
capabilities, if fully implemented, would allow for tapping millions
of telephone conversations simultaneously. Also possible is the
retrieving not only of the conversation but also additional
information such as location of calls placed on wireless units. It is
not clear if these new capabilities for determining positional
information are within the existing structures and limits of wiretap
laws and not violative of Constitutional Rights.
A. Early Strict Interpretation The Court in Olmstead v. United
States[59]
strictly construed the interpretation of the wiretap law. Under their
analysis, voluntary use of the telephone was not compelled by the
government and so did not violate the Fifth Amendment against
self-incrimination.[60]
If this viewpoint were strictly used today then there would probably
be found no violation of the Fifth Amendment for any electronic form
of communication that was voluntarily used. The Court's response to
the challenged Fourth Amendment violation in wiretapping, disclosed
that the communications were not "a tangible form."[61]
Thus, if there was no entry into a structure, then there was no
search or seizure of a tangible item. Within this interpretation, the
current electronic means of communication would not run afoul of the
Fourth Amendment. B. Shift to Expectation of
Privacy In Katz v. United States[62]
the Court overruled Olmstead. The new rationale for the Court
was the idea that there was a reasonable expectation of privacy by
people. The emphasis thus shifted from the historical perspective of
person and property in the house, to one of person and their
communication. Implicit in the historical perspective was that the
person and their property within the house were to be secure from
search and seizure. The Court separated these and while maintaining
the personal connection, decided that the seizure requirement was
based on an expectation of privacy. This change was more of a
paradigm shift than a revelation. The expectation of a person
encompasses their effects in their home. Thus the new interpretation
encompassed the historical view and provided a new perspective. What
was required to be overturned was the notion that only if effects
were within the home, were they subject to search and seizure in
violation of the Fourth Amendment. The change due to Katz, made the
interception of communications now an issue within the reach of the
Fourth Amendment. The legislative response from Congress with the
necessary backing of the law enforcement community was the 1968
Omnibus Crime Control and Safe Street Act. Title III of the Act
established procedures for "interceptions" for criminal
investigations and listed a series of crimes which wiretaps were
limited to.[63] In order for a judge to approve a wiretap
order, he must determine that (i) there is probable cause to
believe that an individual is committing, or is about to commit,
an indictable offense; (ii) there is probable cause to believe
that communications about the offense will be obtained through the
interception; (iii) normal investigative procedures have been
tried and have either failed, or appear unlikely to succeed, or
are too dangerous; and (iv) there is probable cause to believe
that the facilities subject to surveillance are being used, or
will be used, in the commission of the crime. Such requirements
may be waived in an emergency, if an application for a court order
is made within forty-eight hours. Any oral or wire communication
intercepted in violation of Title III cannot be
divulged. When a court order for a wiretap is approved,
it is taken to the communications service provider for execution.
Under Title III, the provider is required to assist in discharging
the wiretap, and the provider is compensated for all expenses.
Taps are approved for at most thirty days, with any extension
needing a new court order.[64] This bill by clearly spelling out the legal
procedures required for wiretapping, satisfied the Fourth Amendment
requirement for a warrant with probable cause and detailing with
particularity "the place to be searched, and person or things to be
seized."[65] C. New Privacy Concerns As communications technology advanced, Congress
became aware of possible privacy issues and in October 1985, the
Office of Technology Assessment ("OTA") issued a report. Titled
"Electronic Surveillance and Civil Liberties",[66]
the report concluded that current legal protections were weak,
ambiguous, or non-existent.[67]
Congress amended the 1968 Act by passage of the Electronic
Communications Privacy Act of 1986 ("ECPA")[68]
because the 1968 Act did not adequately protect new forms of
communication such as wireless and computer
transmissions.[69]
Title III of the 1968 Act had covered only voice communications,
either face to face or over a wire.[70]
Additionally, it had only applied to communications sent by common
carriers.[71]
ECPA extended Title III to include wireless voice communications and
electronic non-voice communications such as computer to computer
(e-mail, etc.).[72]
Congress was attempting to not only provide a new measure of privacy
to these new forms of communication,[73]
but also assure that new telecommunication services would be
developed and used.[74]
There was an acute awareness that without guarantees of privacy,
"[i]t may discourage American businesses from developing new
innovative forms of telecommunications and computer
technology."[75] Congress also in ECPA, began to deal with
"transactional information."[76]
Transactional information consists of telephone records, stored
information, etc.[77]Title
III of the ECPA also added a new chapter[78]
206 to title 18[79]
dealing with pen registers, traps, and trace devices. These devices
are intended to provide transactional information
only.[80]
A "pen register" is a device that is attached to a telephone
line[81]
and records or decodes the numbers dialed.[82]
It does not include any device which is used for billing
purposes.[83]
A "trap" or "trace" device captures and identifies the originating
number of an electronic communication.[84]
These devices are not to identify or record the contents of the
communication.[85]
In reality, because they connect to the telephone lines and can
listen for such things as audible dial tones, it is easy for them to
intercept the communications as well and often all that is needed is
"the attachment of an audio cable, a tape recorder, and a wire to
enable the interception of such contents."[86] D. New Wiretap Initiatives As the communications technology continued to
advance the FBI was concerned about the inability to tap and locate
some calls.[87]
They proposed several initiatives dealing with
encryption[88]
and wiretapping.[89]
In 1994 the Communications Assistance for Law Enforcement Act of 1994
("CALEA") was passed.[90]
As originally proposed the scope of wiretap capability was very
wide.[91]
The final version had limitations for tapping to common carriers
only[92],
and allocated initially $500M to cover costs[93]
of implementation from 1995 to 1998[94].
The limitation to a common carrier was due to concern that small
telephone exchanges such as a company PBX might be liable for the
$10,000 per day fine[95]
if they did not provide a tap. The tapping capacity was issued by the
FBI in a series of Notices.[96]
After some initial misunderstandings the "FBI published its nearly
100-page Final Notice of Capacity on March 12, 1998."[97]
[98]
In a city like Los Angeles the notice provided for an estimated 167
interceptions per day[99]
based on a historical use of 60 interceptions per
day.[100] 1. Implementation Challenges There are several major issues with respect to the
implementation of CALEA. One issue is the technical requirements and
the time required to implement them. Closely allied to the first, is
the cost issue and who funds not only the initial conversion but who
pays for the annual upkeep and upgrades needed. Finally there is
confusion on exactly what "call identifying information"
is. The technical requirement and implementation of
CALEA has brought about a howl from the privacy sector as well as the
industry. Many lawsuits and challenges have been made by both
individual and industrial groups. The United States Telephone
Association (USTA) has brought suit[101]
alleging that the FBI regulations promulgated "obliterate Congress'
careful allocation of costs . . ."[102]
and that it shifts the burden of cost to the carriers[103]
and has a "disproportionately harmful effect on small carriers . . .
."[104]
The Cellular Telecommunications Industry Association (CITA) has also
filed suit against Reno (FBI head).[105]
CITA alleges an FBI definitional change that ignores CALEA's
reimbursement intent[106],
that the definition poses anticompetitive problems[107],
that it violates CALEA[108]
and seeks an injunction against enforcement.[109]
The issue has reached such proportions that the FCC in 1998 launched
an investigation[110],
and is soliciting public comment.[111] The time requirement for implementation of CALEA
was originally October 25, 1998.[112]
When originally published in 1994[113],
industry claimed that it would be unable to meet such a
deadline.[114]
Finally in September of 1998 the FCC extended the deadline to June
30, 2000[115]
on an industry-wide basis.[116]
The FCC order[117]
however did not address the issue raised by industry and privacy
advocates that the FBI was using the law to expand wiretap
capabilities.[118]
The FCC did however acknowledge the importance of their ruling on
such an issue[119]
and indicated that they would soon consider modifications to the core
standard of CALEA.[120] On August 27, 1999 the FCC issued a press release
on CALEA.[121]
The FCC clarified which service providers are subject to the
requirements of CALEA, and provided guidance regarding compliance
with the law.[122]
The FCC further clarified the definition of "telecommunications
carrier" per section 102 of CALEA.[123]
Entities now subject to CALEA include, all entities previously
classified as common carriers, cable operators, electric and other
utilities to the extent they offer telecommunications services for
hire to the public.[124]
Perhaps the most interesting development was that “[w]hile
facilities used solely for the provision of information services are
not subject to CALEA, telecommunications carriers' facilities used to
provide both telecommunications and information services are
subject to the requirements of the Act.”[125]
(Emphasis added.) Since many ISPs (Internet Service Providers) have
co-located equipment, they may be subject to CALEA. Additionally,
since the Internet is capable of providing telecommunications,
arguably they may fall under CALEA on this point as well. Also on August 27, 1999 the FCC issued another
press release related to CALEA and technical
standards.[126]
This press release is more revealing in the particulars that the FCC
expects CALEA to cover. The requirements cover wireline, cellular,
and broadband Personal Communications Services (PCS) carriers and are
referred to as six of nine "punch list" capabilities requested by the
Department of Justice and the FBI.[127]
All of these capabilities are to be implemented by June 30,
2000.[128]
The FCC, realizing the difficulty as discussed above of “tapping”
packet-switched communications, has delayed implementation for these
services until September 30, 2001.[129] Under the new standards, law enforcement agencies
(LEAs) are required to get a court order or legal authorization
beyond a pen register or trap and trace authorization to obtain
"call-identifying information."[130]
This "call-identifying information" is to include location
information.[131] The FCC found that location information identifies
the "origin" or "destination" of a communication and thus is covered
by CALEA. The FCC, however, did not mandate that carriers be able to
provide LEAs with the precise physical location of a caller. Rather,
it permitted LEAs with the proper legal authorization to receive from
wireline, cellular, and broadband PCS carriers only the location of a
cell site at the beginning and termination of a mobile
call.[132] For packet-mode (same as packet-switched)
communications the FCC determined that law enforcement agencies “could
be provided with access to both call identifying information
and call content, even where it may be authorized only to
receive call identifying information.”[133]
(Emphasis added.) Rather than addressing the privacy concerns that
the FCC acknowledged, they recommended that private industry under
the guise of the Telecommunications Industry Association (TIA) come
up with suggestions by September 30, 2000 “on steps that can be
taken, including particular amendments to the interim standard, that
will better address privacy concerns.”[134]
This seems a strange turn of events where the government acts with a
default against an issue as important as privacy and puts the onus on
private industry to “recommend” possible ways to protect
it. The six of nine "punch list" capabilities
requested by the DOJ and the FBI and now required to be implemented
by June 30, 2000 are: Party hold, join, drop on conference
calls -- Messages will be sent to a LEA that identify the
active parties of a call. Specifically, on a conference call,
these messages will indicate whether a party is on hold, has
joined, or has been dropped from the conference call. Subject-initiated dialing and signaling
information -- Access to dialing and signaling information
available from the subject will inform a LEA of a subject's use of
features (e.g., call forwarding, call waiting, call hold, and
three-way calling). In-band and out-of-band signaling
(notification message) -- A message will be sent to a LEA
whenever a subject's service sends a tone or other network message
to the subject or associate (e.g., notification that a line is
ringing or busy, call waiting signal). Timing information -- Information will
be sent to a LEA permitting it to correlate call-identifying
information with the call content of a communications
interception. Dialed digit extraction --The
originating carrier will provide to a LEA on the call data channel
any digits dialed by the subject after connecting to another
carrier's service.,[sic] pursuant to a pen register
authorization. The FCC found that some such digits fit within
CALEA's definition of call-identifying information, and that they
are generally reasonably available to carriers. [135] The three items that did not make the “punch
list” were a surveillance status wherein a wiretap could be
checked for functioning correctly, a continuity check tone whose
purpose would be to alert law enforcement agencies if a wiretap
failed or was disconnected, and a feature status that would inform
law enforcement agencies if “calling services” of a
facility under surveillance were added or deleted.[136]
The FCC found that these capabilities were not required by CALEA, but
suggested that carriers were “free to provide these
capabilities if they wish to do so.”[137] 2. Funding Wiretaps The $500M allocated for CALEA
implementation[138]
was felt by the industry to be wholly inadequate. The $500M was for a
4 year period ending in 1998.[139]
Even discounting the industry the Congressional Budget Office ("CBO")
had this to say in 1994 "The costs of the bill in fiscal years 1998
and 1999 are very uncertain because the precise technical solutions
to the bill's requirements are unknown at this time."[140]
The CBO went further and estimated the costs would be "roughly $100
million annually."[141]
And perhaps more significantly was the likelihood that
"[c]osts of this order of magnitude could continue in later
years."[142] 3. Call Identification and
Location "Call identifying information" is the buzzword
that CALEA uses for implementation standards. There are definitions
for electronic mail,[143]
computer-to-computer communications,[144]
electronic bulletin boards,[145]
microwave communications,[146]
cellular telephones,[147]
cordless telephones,[148]
electronic pagers,[149]
pen register and trap and trace devices,[150]
electronic tracking devices (transponders),[151]
and remote computer services[152].
The significance of the differentiation between cellular and cordless
and tracking devices, lies in the explicit lack of and inclusion in
relation to positional information. The cellular and cordless make no
mention of positional information. The electronic tracking devices
definition specifically states "This signal can be received by
special tracking equipment, and allows the user to trace the
geographical location of the transponder. Such 'homing' devices are
used by law enforcement personnel to keep track of the physical
whereabouts of the sending unit . . . ."[153]
Even though CALEA specifically excludes location from
"call-identifying" information,[154]
the FBI has maintained that this information is to be available to
law enforcement pursuant to a court order.[155]
"Despite the express prohibition on this kind of surveillance, the
FBI has also insisted that the industry accommodate its desire to
track the location of its subjects."[156]
What is innocuous here is that for rapid dialing, most automobile
mobile phones are effectively on at all times. Thus under this plan
the FBI would be able to track all cars with such units and anybody
switching on a wireless telephone regardless of whether a call was
being placed.[157]
In addition the FBI wanted the information on what numbers you dialed
for voice mail[158]
and the FBI wanted to be able to continue to listen in on a
conference call even after the suspect had hung up.[159]
The industry outcry was predictably rejected.[160]
This is pretty much where the issue stands at this point. An industry
and privacy advocates on one side and the FBI and law enforcement on
the other. 4. Expanded Roving Wiretaps Then in late 1998 the FBI in a maneuver that was
decried (it was added by a conference committee even though it was in
neither the House or Senate version before the
committee[161])
expanded wiretap authority in the form of a "roving wiretap." A
roving wiretap is where law enforcement taps any telephone used by or
near to the suspect.[162]
Under this scenario then, a suspect who visits a non-suspect now
allows the police to tap the non-suspect's telephone.[163]
The rationale is that the suspect might use the telephone. The FBI
has always had a roving wiretap authority with a court order and
proof that a suspect was switching phones to avoid
detection.[164]
However under the changes the police only need to show that an
individual's "actions could have the effect of thwarting interception
from a specific facility."[165]
This shift from "proof" to "could" is a much lower
standard. 5. Emergency 911 and Location
Information With the increase in usage of cellular telephones,
the FCC was considering expansion of the 911 emergency capability,
not only for wider coverage, but also for location information to
assist in emergencies. To address this, the FCC first proposed an
Enhanced 911 System ("E911") in 1994,[166]
and after modifications it was adopted in June of
1996.[167]
Like the FBI proposal the industry wanted to be compensated for this
change. While the cellular companies have some general information
about which "cell" you are in, the information does not pinpoint a
specific location. A cell typically covers a large area. Technically
you can derive the location information from triangulation,
foot-prints, or GPS (Global Positioning Satellite) signals.
Triangulation uses differences in the time of arrival of a cellular
signal to different receiving antennas and the signal strength to get
an indication of where you are. However, reflections and interference
can make this of marginal value. Foot-prints actually use the
characteristics of signal strength and multiple reflections to figure
out the location. The advantage of the foot-print approach is that
only a single antenna is needed. The disadvantage is that in order to
get a foot-print you need to traverse the entire area covered mapping
the signals and reflections. Another disadvantage is that new
buildings, trees, etc. mess up the signature pattern. Finally there
is GPS. The idea here is to embed in every cell phone a GPS unit.
Upon remote activation then, the phone could report its position.
Once thought too expensive this approach is well within reach and
very attractive. With current technology it can locate you within
about 10 feet. Expensive units today can locate you within less than
a foot. Imagine the desirability of this information from the
standpoint of the FBI and law enforcement being able to know if you
are in the kitchen talking on the phone or whether you just moved
into the bathroom. The E911 program has different phases wherein each
succeeding phase requires more accuracy in the locating
process.[168]
Phase I[169]
requires only the "cell" location information[170]
and is currently required[171].
Also required as of April 1, 1998 was the automatic number
identification (ANI).[172]
This allows the 911 center to call back any person calling in. It
basically transfers your phone number to the 911 center. Phase II due
for implementation beginning October 1, 2001,[173]
more precise location information is required. The current standard
is to be able to locate 67% of the time, the phone within a radius of
125 meters[174].
Industry again said that implementation would take more time than
allocated and is currently in the process of extended discussions
with the FCC. Given the technologies that are evolving in E911,
it is not a far stretch to see that the FBI and law enforcement would
like this positional information. Technically a carrier could "tag" a
tap as a 911 call and thus obtain this information. Given the FBI's
tactics in the past, this is a very real possibility. E. Wiretap Costs According to the FBI the $500 million allocated
for upgrading of equipment is sufficient. The industry feels the
number is closer to $1.5 billion. The FBI, state, and local law
enforcement had a total of less than 1200 wiretaps in
1995.[175]
Assuming this number then, the 1995 cost per wiretap was $416,666.67
based on the $500 million and was $1.25 million per wiretap based on
the industry figure of $1.5 billion. Rather expensive! Either the FBI
really values the information OR they are tapping many more lines
than they are willing to admit. There is a need to balance the interest of law
enforcement with those of the individual. Given the rapid advances in
technology and the aggressive stance of the FBI on extensions to the
wiretap laws, there is concern that that the balance has been tipped
against privacy. It seems reasonable then to return to the
Constitution and reinterpret the meaning of freedom of movement,
association and search and seizure. In this light then we must shed
the technical innovations which will always be changing and ask anew
the questions as Justice Brandeis did in 1928 in
Olmstead. Moreover, 'in the application of a
Constitution, our contemplation cannot be only of what has been,
but of what may be.' The progress of science in furnishing the
government with means of espionage is not likely to stop with wire
tapping. Ways may some day be developed by which the government,
without removing papers from secret drawers, can reproduce them in
court, and by which it will be enabled to expose to a jury the
most intimate occurrences of the home. Advances in the psychic and
related sciences may bring means of exploring unexpressed beliefs,
thoughts and emotions. 'That places the liberty of every man in
the hands of every petty officer' was said by James Otis of much
lesser intrusions than these. To Lord Camden a far slighter
intrusion seemed 'subversive of all the comforts of society.' Can
it be that the Constitution affords no protection against such
invasions of individual security?[176] A reasonable course appears to strictly interpret
CALEA as it stands and not allow the expansions sought by the FBI. If
extensions are needed then they should be explicit and NOT in a
midnight committee that inserts into legislation that which neither
the House or the Senate submitted. A court order is required for the
installation of a tap. The investigator draws up an affidavit
showing there is probable cause to believe that the targeted
communications device --- whether phone, fax, computer --- is
being used to facilitate a crime. The crime must be serious and
indictable. A government attorney must prepare an application for
a court order, and approval must be by a member of the Justice
Department no lower in rank than Deputy Assistant Attorney
General. The application must be decided upon by a Federal
District Court Judge.
Content of subject-initiated
conference calls -- A LEA will be able to access the content
of conference calls initiated by the subject under surveillance
(including the call content of parties on hold), pursuant to a
court order or other legal authorization beyond a pen register
order.
When the Fourth and Fifth Amendments were
adopted, 'the form that evil had theretofore taken' had been
necessarily simple. Force and violence were then the only means
known to man by which a government could directly effect self-
incrimination. It could compel the individual to testify-a
compulsion effected, if need be, by torture. It could secure
possession of his papers and other articles incident to his
private life-a seizure effected, if need be, by breaking and
entry. Protection against such invasion of 'the sanctities of a
man's home and the privacies of life' was provided in the Fourth
and Fifth Amendments by specific language. . . . But 'time works
changes, brings into existence new conditions and purposes.'
Subtler and more far-reaching means of invading privacy have
become available to the government. Discovery and invention have
made it possible for the government, by means far more effective
than stretching upon the rack, to obtain disclosure in court of
what is whispered in the closet.
The FBI concerned about the proliferation of
Personal Digital Assistants (PDA) and their merged wireless
capability has persuaded the FCC under the guise of being able to
locate a person signaling for assistance, to declare that wireless
PDAs fall within the E911 guidelines. This plus the CALEA expansion
to ISPs allows the FBI to wiretap PDA’s. Of particular interest
is the syncing data that many people now send and receive from both
their home and office computers in order to stay current with
appointments, etc. The courts have to date, considered this to fall
within the established email protects, however this is likely to
change, now that one of the Supreme Court Justices daily activities
for the past five years and activities for the coming year has been
disseminated on the web. 2010-2020 The rapid expansion of light networks (like
Terabeam) for company to company and now customer to customer
telecommunications has very much upset the FBI and law enforcement.
Of particular concern is that there is no more centralized or even
clumped distributed channel that can be wiretapped. The FBI’s
Digital Storm (started in 2000) despite encryption was able to
effectively garner information from massive correlation of
communications and transactions. However, with the ability of
lightwave point-to-point direct communication, law enforcement is not
even aware of communications taking place. Corporate wiretapping was
dealt with by the FBI and courts extending the communication carrier
definition and not buying the PBX exclusions in the early version of
CALEA. However, law enforcement and particularly the FBI was livid
over the expansion of this communications capability to the
individual consumer. Now point to point communication was untapable.
The FCC tried to ban the devices, but was largely unsuccessful. The
FBI was able in some cases to track down beams traveling point to
point and tap them by scattering some of the laser light. This worked
well for arresting persons because they knew the origination and
destination points. However, this approach ended shortly and the FBI
went ballistic when they discovered that people were aiming the
lasers skyward and bouncing their signals off corner cubes. The first
of these cubes was put on the moon 45 years ago, and others were put
in earth orbit by the military (supposedly unknown to the public).
The effect was that the signals origin and destination were now
unknown and with the use of encryption from an unknown sender to an
unknown receiver it was an impossible taping task. 2021-2035 Enhanced biometric readings coupled with the
quantum computer which allowed the easy integration of SQUID
(superconducting quantum interference devices) devices now allows an
85% accuracy in determining when a person will go postal. This has
driven the price of the postal detectors to the $10K range and their
proliferation has exploded. Even private residences have them in the
entryways. This was not a concern until a hacker in Togo claimed to
be able to determine more than just a rage cluster. The idea that
some other thoughts might be picked up and discerned, has put the
Supreme Court in a real bind. How they rule in Enlil v. FBI may
determine if we are ever able to enter a public place without having
our thoughts read. The use of wiretap originally required little more
than hidden wires to the telephone system in a building and a remote
listening post. Advances in tapping sophistication moved the tap to
the central switching office. Advances in technology, particularly
the "switched circuit" to digital "packet switching" change, greatly
complicated remote tapping. Throughout all these advances the
positional information on the tapped telephone was implicit. With the
advent of the wireless telephone, which can move from cell to cell,
that information is no longer implicitly available. To regain this
lost information the government "extended" the current wiretap laws
to include this positional information. It is this extension which
raises constitutional issues. Taping into a telephone, which a
suspect may use, is different than tracking a phone that a suspect
may use. The issue is one of whether tracking movements impinges on
freedom to associate (either the suspect or other persons)(First
Amendment), is an unreasonable search or seizure (Fourth Amendment),
or is a violation of due process (Fifth / Fourteenth
Amendment). Current interpretations and a reasonable extension
of the law appear to provide a legitimate base for such information
only when a valid warrant has been issued. The danger of extension
lies in "positional association" and roving wiretaps. The entire area
is a quagmire both legally and technologically. Strict interpretation
of CALEA prohibits detailed positional information. It is perhaps time to abandon the wiretap model of
communications interception and rely instead on other methods such as
bugging. Much like the ill fated attempts to outlaw private cars that
were faster than police cars, time and technology have passed the
wiretap by. [2]
ROBERT M. BROWN, THE ELECTRONIC INVASION 1-6 (1967). [3]
Greiveldinger supra note 1, at 510. [4]
Id. at 506. [5]"Alexander
Graham Bell," MICROSOFT ENCARTA ENCYCLOPEDIA 99
(1998). [6]
This type of tap had to only connect to the two wires that were used
for the telephone connection. They are often referred to as Tip and
Ring. The plugs that the early operators used on the switch panels
are similar to the 1/4 inch stereo headphone jacks common on stereos
today. The Tip was the connection at the tip. The Ring was the other
connection and carried the ringing signal to the phone. Once the
phone was picked up, the ring would stop and the Tip and Ring would
carry the callers voice signals. [7]
Susan Landau et al., Codes, Keys and Conflicts: Issues in U.S.
Crypto Policy, ASS'N FOR COMPUTING MACHINERY, June 1994, at ch.
3. [8]
Id. [9]
Id. [10]
Olmstead v. United States, 277 U.S. 438 (1928). [11]
Id. at 455. [12]
Id. at 463. [13]
Id. at 464. [14]
Id. at 466. [15]
Id. [16]
Olmstead, 277 U.S. at 462. [17]
Id. [18]
Shelly Warwick, The Right to Spy: Government, Technology and
Privacy, AM. SOC'Y FOR INFO. SCI., at 71 (June 1997). [19]
Id. [20]
Landau, supra note 4. [21]
Warwick, supra at 72. [22]
Landau, supra note 4. [23]
Id. [24]
Id. [25]
316 U.S. 129 (1942). [26]
Landau, supra note 4. [27]
Id. [28]
347 U.S. 128 (1954). [29]
Landau, supra note 4. [30]
365 U.S. 505 (1961). [31]
Landau, supra note 4. [32]
Alan Burton, 911 (last modified Sept. 3, 1998)
<http://www.911dispatch.com/911_file/911_burton.html>. [33]
Id. [34]
"Telephone," Microsoft® Encarta® Encyclopedia 99
Microsoft Corporation (1998). [35]Id. [36]
Id. [37]
389 U.S. 347 (1967). [38]
Hildegarde A. Senseney, Interpreting The Communications Assistance
For Law Enforcement Act Of 1994: The Justice Department Versus The
Telecommunications Industry & Privacy Rights Advocates, 20
HASTINGS COMM. & ENT. L.J. 665, 669 (1998). [39]
Katz v. United States, 389 U.S. 347, 351 (1967). [40]
Id. at 353. [41]
Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as amended at 18
U.S.C. §§ 1367, 2232, 2510-2522, 2701-2711, 3121-3127
(1996)). [42]
Warwick, supra note 18, at 72. [43]
Among the list of crimes was: murder, kidnapping, extortion,
gambling, counterfeiting, sale of marijuana. [44]
Pub. L. No. 99-508, 100 Stat. 1849-1853 (1986) (codified at 18 U.S.C.
§§ 2510-2522 (1996)). [45]
Senseney, supra note 35, at 670. [46]
Landau, supra note 4, at ch. 6. [47]
Senseney, supra note 35, at 670. [48]
Among the encryption ones, which are not the subject of this paper,
was the refusal to extend the key length in the 56bit DES (Data
Encryption Standard, circa 1977), the DSS (Digital Signature
Standard) with a compromised key length (1994), and the ill-fated
Clipper chip with a back door key. [49]
Landau, supra note 4, at ch. 6. [50]
Id. [51]
Id. [52]
Senseney, supra note 35, at 671. [53]
Proposed Rules Federal Communications Commission: Enhanced 911
Emergency Calling, 199459 FR 54878 (47 CFR Part 68 ((CC Docket No.
94-102, RM-8143; FCC 94-237)) (Nov. 2, 1994) (available in
1994 WL 594483). [54]
See FCC Adopts Rules To Implement Enhanced 911 For Wireless
Services, CC Docket No. 94-102, Report No. DC 96-52 (rel. June 12,
1996). [55]
Lawmakers ease wiretap rules, SAN JOSE MERCURY NEWS, Oct. 9,
1998, at 20A. [56]
Id. [57]
Dan Gillmor, Congress' Sneak Attack On Liberty, SAN JOSE
MERCURY NEWS, Oct. 13, 1998. [58]
Id. [59]
277 U.S. 438 (1928). [60]
Olmstead v. United States, 277 U.S. 438 (1928). [61]
Id. [62]
389 U.S. 347, 351 (1967). [63]
Among the list of crimes was: murder, kidnapping, extortion,
gambling, counterfeiting, and sale of marijuana. [64]
Susan Landau et al., Codes, Keys and Conflicts: Issues in U.S.
Crypto Policy, ASS'N FOR COMPUTING MACHINERY, June 1994, at ch.
3. [65]
U.S. CONST. amend. IV. [66]
U.S. Congress, Office of Technology Assessment, Federal Government
Information Technology: Electronic Surveillance and Civil
Liberties, OTA-CIT-293 (Oct. 1985). [67]
Id. [68]
See supra note 41. [69]
James X. Dempsey, Communications Privacy In The Digital Age:
Revitalizing The Federal Wiretap Laws To Enhance Privacy, 8 ALB.
L.J. SCI. & TECH. 65, 73 (1997). [70]
Id. [71]
See 18 U.S.C. 2510(10) (1968). [72]
Dempsey supra at note 66. [73]
Id. at 73-74. [74]
Id. at 74. [75]
S. Rep. No. 99-541, at 5 (1986), reprinted in 1986
U.S.C.C.A.N. 3555. [76]
Id. at 2. [77]
See 18 U.S.C. § 2701 (1999), et seq. [78]
S. Rep. No. 99-541, at 15 (1986), reprinted in 1986
U.S.C.C.A.N. 3555. [79]
18 U.S.C. §§ 3121-3127 (1999). [80]
S. Rep. No. 99-541, at 15 (1986), reprinted in 1986
U.S.C.C.A.N. 3555. [81]
18 U.S.C. § 3127(3) (1999). [82]
Id. [83]
Id. [84]
18 U.S.C. § 3127(4) (1999). [85]
S. Rep. No. 99-541, at 15 (1986), reprinted in 1986
U.S.C.C.A.N. 3555. [86]
U.S. v. Miller, 116 F.3d 641, 660 (C.A.2 NY 1997), cert.
denied, 118 S. Ct. 2063 (1998). [87]
Landau, supra note 4, at ch. 6. [88]
Among the encryption ones, which are not the subject of this paper,
was the refusal to extend the key length in the 56bit DES (Data
Encryption Standard, circa 1977), the DSS (Digital Signature
Standard) with a compromised key length (1994), and the ill-fated
Clipper chip with a back door key. [89]
Landau, supra note 4, at ch. 6. [90]
Senseney, supra note 35, at 671. [91]
Landau, supra note 4, at ch. 6. [92]
47 U.S.C. § 1001 (1999). [9]
47 U.S.C. § 1009 (1999). [94]
Senseney, supra note 35, at 675. [95]
18 U.S.C. § 2522(c)(1) (1999). [96]
Senseney, supra note 35, at 678-81. [97]
Id. at 680. [98]
63 Fed. Reg. 12,218 (Mar. 12, 1998). [99]
Senseney, supra note 35, at 680. [100]
Id. [101]
United States Telephone Ass'n. v. FBI, No. 1:98CV02010 (D DC,
complaint filed Aug. 19, 1998). [102]
Id. [103]
Id. [104]
Id. [105]
Cellular Telecomm. Indus. Ass'n v. Reno, No. 1:98CV01036 (D DC,
complaint filed April 27, 1998). [106]
Id. [107]
Id. [108]
Id. [109]
Id. See also In The News: FCC Launches Investigation of Digital
Wiretap Law, Cyberspace Lawyer, May, 1998, available at 3
No. 3 GLCYLAW 29. [110]
In The News: FCC Launches Investigation of Digital Wiretap
Law, Cyberspace Lawyer, May, 1998, available at 3 No. 3
GLCYLAW 29. [111]
Id. FCC notice is available at http://
www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/1998/da980762.txt
(visited May 6, 2000). [112]
47 U.S.C. § 1003 (1998). [113]
CALEA went into law October 1994. See Senseney, supra
note 35, at 671. [114]
Ellen d'Alelio, Selected Regulatory Developments, 3 No. 5
Elec. Banking L. & Com. Rep. 22 (Oct. 1998). [115]
FCC Order No. 98-223. The FCC has held firm on this date, however,
there is a petition process to delay implementation. See FCC
00-154 (April 25, 2000) at
<http://www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/2000/fcc00154.doc>. [116]
d'Alelio supra note 135. [117]
The FCC Memorandum Opinion and Order, and Commissioner statements are
available at <http://www.fcc.gov>. [118]
d'Alelio supra note 135. [119]
Id. [120]
Id. The industry standard is J-STD-025. [121]
FCC Press Release, FCC CLARIFIES ENTITIES SUBJECT TO CALEA
AND PROVIDES GUIDANCE ON "REASONABLY ACHIEVABLE"
PETITIONS, FCC Order 99-229, CC Docket No. 97-213, WT Report No.
99-24 (Aug. 27, 1999). [122]
Id. [123]
Id. [124]
Id. [125]
Id. [126]
FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC
Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27,
1999). [127]
Id. [128]
Id. [129]
Id. [130]
Id. [131]
FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC
Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27,
1999). [132]
Id. [133]
Id. [134]
Id. [135]
Id. [136]
FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC
Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27,
1999). [137]
Id. [138]
47 U.S.C. § 1009 (1999). [139]
Id. [140]
S. Rep. No. 103-402, at 32 (1994), available at 1994 WL
562252. [141]
Id. [142]
Id. [143]
See supra S. Rep. No. 99-541 note 77, at 9. [144]
Id. [145]
Id. at 10. [146]
Id. [147]
Id. at 11. [148]
Id. [149]
See supra S. Rep. No. 99-541 note 77, at 12. [150]
Id. at 13. [151]
Id. [152]
Id. at 14. [153]
See supra S. Rep. No. 99-541 note 77, at 13. [154]
47 U.S.C. § 1002 (1999). [155]
Senseney, supra note 35, at 688. [156]
Id. [157]
Joe Salkowski, Feature: Bugging the airwaves: Privacy advocates
fight to limit FBI wiretaps on cell phones, StarNet Dispatches,
Feb. 18, 1998, available at
<http://www.dispatches.azstarnet.com/features/1998/0218.htm>. [158]
Id. [159]
Id. [160]
John Markoff, Cellular Industry Rejects U.S. Plan for
Surveillance, N.Y. TIMES, Sept. 20, 1996, at A1. [161]
Dan Gillmor, Congress' Sneak Attack On Liberty, SAN JOSE
MERCURY NEWS, Oct. 13, 1998. [162]
Lawmakers ease wiretap rules, SAN JOSE MERCURY NEWS, Oct. 9,
1998, at 20A. [163]
Id. [164]
Id. [165]
Id. [166]
Proposed Rules Federal Communications Commission: Enhanced 911
Emergency Calling, 199459 FR 54878 (47 CFR Part 68 ((CC Docket No.
94-102, RM-8143; FCC 94-237)) (Nov. 2, 1994) (available in
1994 WL 594483). [167]
See FCC Adopts Rules To Implement Enhanced 911 For Wireless
Services, CC Docket No. 94-102, Report No. DC 96-52 (rel. June 12,
1996). [168]
FCC News Report, FCC Requires Wireless Carriers To Forward All 911
Calls (CC Docket 94-102), Rep. No. WT 97-43 (Dec. 1,
1997). [169]
47 C.F.R. § 20.18 (2000). [170]
See supra FCC News Report, note 172. [171]
Id. [172]
FCC Public Notice, Wireless Telecommunication Bureau Seeks Comment
On Request For An Emergency Declaratory Ruling Filed Regarding
Wireless Enhanced 911 Rulemaking Proceeding, DA 98-1504 (CC
Docket No. 94-102) (July 30, 1998). [173]
FCC News Report, supra note 172. [174]
Id. [175]
Stat. Div., Admin. Office of the US Cts., 1995 Wiretap Rep. at 7
(1996). Even as late as 1997 the FBI was claiming “will not
increase the amount of electronic surveillance,” a press
release from the FBI January 14, 1997 available at
<http://www.fbi.gov/pressrm/pressrel/pressrel97/telephon.htm>. [176]
Olmstead v. United States, 277 U.S. 438, 473-74 (1928)(citations
omitted). Back to Class
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