Court to decide legality of cellular phone tracking

WASHINGTON (AP) — Police and the FBI could find out the location of any person talking on a cellular phone — as long as a court approves — under a proposal the government is expected to make Thursday.
With some 66 million cellular phone customers, law enforcement officials want the authority to tap cell phones to track down drug dealers, terrorists and kidnappers. But some groups worry such a practice could violate privacy.
The Federal Communications Commission is expected to propose giving the FBI and other law enforcement officers this and other additional wiretapping capabilities to keep pace with technology.
The proposal is part of a larger plan to implement a 1994 law that requires companies to make digital wiretapping technology available to law enforcers. The location proposal is based on a plan from the telecommunications industry.
“We think this is a positive step forward,” said Stephen Colgate, the Justice Department’s assistant attorney general for administration. “In many kidnapping cases, it would have been very helpful to have location information.”
But James Dempsey, counsel to the Center for Democracy and Technology, a privacy group, said: “We’re prepared to fight this one every step of the way.”
With a court order, police already can legally listen in to cellular phone conversations, and, in some instances, can get information on the caller’s location.
This proposal, if adopted, would set up a nationwide requirement for companies to have the technical ability to do so.
The legal standard for obtaining location information is lower than the standard for a wiretap order in which police must show a judge there is probable cause of criminal activity.
Under the proposal, police would have to get a court order to obtain a cell phone’s location, but would only need to show it is relevant to an investigation. Privacy groups say that means the government could easily track the movements not only of a suspect, but also of the suspect’s associates, friends or relatives.
It would give police the ability to obtain the cellular phone user’s location at the beginning and end of a wiretapped call, according to industry sources familiar with the plan. They spoke on condition of anonymity.
The proposal would provide information on the caller’s location within several city blocks in an urban area to hundreds of square miles in a rural area.
The FBI had been seeking more exact location information.
The proposal would give police about the same level of location information they get when tapping a regular phone, said Thomas Wheeler, president of the Cellular Telecommunications Industry Association.
The FCC is also expected to tentatively conclude that companies must give police additional capabilities — beyond minimum technical standards already proposed by the industry — so their ability to conduct wiretaps won’t be thwarted.
It’s unclear which additional capabilities will be advanced by the FCC, the sources said.
The FBI, for instance, has asked for the ability to listen in on the conversations of all parties to a conference call, even if some are put on hold and are no longer talking to the target of the legal wiretap.
Privacy groups and the telephone industry contend the additional capabilities sought by the FBI overstep the 1994 law and are an attempt to broaden wiretapping powers. The FBI disagrees, saying they merely preserve the ability to conduct legal wiretaps in a world of constantly changing technology.
All interested parties will get a chance to offer opinions on the proposal, which could be revised before a final plan is adopted.