FBI phone tapping: Is it privacy or paranoia?

For all you kids out there who don't like scary stories, turn the set off now. I'm about to tell you of a monster that's coming this year. And the scariest thing is you can't hide.

For all you kids out there who don't like scary stories, turn the set off now. I'm about to tell you of a monster that's coming this year. And the scariest thing is you can't hide.

In October a US Federal Communications Commission requirement goes into effect that states emergency services must be able to locate all 911 calls placed from a cell phone to within 100 yards. The FCC calls this new service e911, with the E standing not for emergency but for enhanced. Enhanced has a solid, high-tech spin to it.

For your information, last year 911 received approximately 150 million calls, of which 45 million were from wireless phones, according to Scott Petronis at MapInfo, in Troy, New York.

The question, as always, is whether the government is a benevolent or malevolent monster that in this case will use location-based technology to track your whereabouts. The answer? I don't know.

Certainly Uncle Sam has been in the news a great deal of late regarding its various high-tech surveillance operations, Carnivore and Echelon, for example.

Carnivore is the email and web surfing surveillance application used by government agencies to track bad guys. Echelon is the supposed worldwide surveillance satellite system that monitors calls, listening for key words and phrases such as "bomb," "kill the president," "nerve gas," and so forth.

And recently the US Federal Bureau of Investigation requested permission from the FCC to use, among other things, dialed digit extraction technology. Here's how it works: If you are on your cellphone and accessing your bank using touch tones to punch in an account number, the FBI wants to be able to intercept that information under the Communications Assistance for Law Enforcement Act (CALEA).

The wireless industry took that FBI request to court; the courts ruled with the industry and against the FBI. At this point, any information passed via the phone that is not the phone number and location is not available to law enforcement agencies without a court order.

Using today's technology, information passes in random encoded packets; someone intercepting a data transmission would not be able to tell what is in each packet until all the packets were decoded. It is all or nothing. So in the interests of privacy, the courts said it shall be nothing, according to Travis Larsen, a spokesman for the Cellular Telecommunications Industry Association.

Starting in October, cellphone manufacturers, working in partnership with the wireless network providers, will include the technology -- there are a number of ways this can be done -- to locate you within that 100-yard radius as long as your cell phone is turned on. This information is supposed to be accessed only if you dial 911.

The selling of location-based services will be the subject of another Wireless World column.

Could the government or anyone with the genius to figure out how to tap into that information also learn your location? You bet they could.

Larsen adds, however, that under CALEA, a law enforcement agency requesting cooperation from a wireless network provider in locating certain people can access that information only by obtaining a court order.

"That court order has a strict legal requirement, like [requesting] a tap or a trace," Larsen says. "A judge has to give permission."

So I called Michael Gross, an attorney I know, and asked how hard it is to get permission to tap a phone. Michael has been practicing criminal law for 35 years in River Edge, New Jersey.

Michael told me that permission to tap differs from state to state. But the general requirement is that the highest-level criminal court judge in each county is selected to hear applications made by police officials using sworn affidavits, supported by live testimony. The affidavit states that a crime is being or has been committed and that evidence of person or persons involved in committing that crime can best be obtained by using a wiretap.

Permission is typically given for limited amounts of time, usually on a 30-day basis with the time extended under certain circumstances. Interestingly enough, by law, the person being tapped must be notified, usually within 90 days after the tap, that a tap was placed on the phone.

I asked Gross if approvals vary from judge to judge when taps are requested. "These days I believe this stuff is getting easier," he says. "The judges appointed in recent years have a tendency to assume and rely upon an assumption that the government wouldn't be asking if they weren't entitled. They don't put the applicant through as a severe a test for proof as they used to."

I am aware of the argument that says if you've done nothing wrong, then you have nothing to fear. But I'm afraid world history is not very reassuring on that score.

This is a huge topic that has many facets, both pro and con, but unfortunately I've used up my allotted space. Stay tuned for Part 2, coming next week.

If you have anything to contribute about this issue I would like to hear from you. Send email to Ephraim Schwartz.

Schwartz is an editor at large in InfoWorld's news department. He has covered the high-tech industry for 16 years.

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