Subject: [NEXTEL-1] Privacy Issues Still Loom Over E911

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Date: Fri, 03 Jan 2003 15:13:23 -0500

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Privacy Issues Still Loom Over E911

By Mark Rockwell
January 1, 2003

Wireless Week
© 2002, Reed Business Information, a division of Reed Elsevier Inc. All Rights Reserved.

Like much of today's lightning fast technology, the increasingly sophisticated capabilities of wireless communications are skipping merrily ahead of laws aimed at protecting consumers.

The breakneck pace of technological advancement not only is making lives easier for consumers, it's also making their lives more open–and possibly more vulnerable, some critics say. Unfortunately, unintended consequences of well-meaning technology are inevitable.

Take the FCC's wireless E911 initiative. The effort to give wireless users the same kind of automatic location identifying capabilities as found on wired networks will not only allow wireless users to be found by emergency responders more easily, but it also opens up a snake pit of privacy issues for users–issues that often aren't addressed by any existing law.

It should be noted that law enforcement has been using older forms of triangulation with cell phone towers to locate people for years. Last summer's Midwestern "smiley face" bomber, who set off mailbox bombs in rural areas, was located using such techniques, as was a recent suspect in an Arlington, Va., kidnapping whose victim was able to reach police via her cell phone while in the suspect's car. These kinds of uses aren't as sophisticated or nearly as detailed as the information that would be available with phones equipped with global positioning capabilities, however.

When the FCC's E911 initiative eventually is fulfilled, wireless phone users are supposed to have the capability to be located within yards. The FCC adopted the E911 rules back in June 1996, and it gave wireless carriers five years to come up with technology that would channel 911 calls to the nearest public safety answering point and provide an almost exact location of the wireless handset making the call. The rules were to be implemented in two phases.

But no such careful requirements were made of law enforcement's pursuit of wiretap capabilities with the growing wireless location technology, and that has privacy advocates and industry officials concerned.

"This is a significant privacy issue," says David Sobel, general counsel for the Washington, D.C.-based Electronic Privacy Information Center, an organization that monitors emerging technology and privacy issues. Even when the federal government asked for more up-to-date telephone monitoring capabilities in its 1996 Communications Assistance for Law Enforcement Act, it didn't exactly spell out how increasingly specific wireless location information could be used or accessed by law enforcement, he says. CALEA specified that wireless carriers be able to locate to the nearest cell tower the wireless caller's location. The FCC has specified that callers should be able to be located within a few yards of their actual physical location. "There's a glaring hole in the law," concerning how this additional information can and should be addressed, Sobel says.

"From the beginning, E911 has been a Trojan Horse for privacy," says Mike Altschul, general counsel at CTIA. Law enforcement still relies basically on wiretap laws drawn up in the 1960s that addressed practically Neolithic telephone networks–from the date and time telephone records of the typical "trap and trace" wiretap to the more intrusive "Title 13" wiretap that listens in on a live telephone conversations–although some modifications were made in CALEA for wireline networks.

The distance between the threshold of law enforcement's need for warrants for these basic tapping capabilities and the need for the ability to track someone using his cell phone is a vast gray area, says Jay Stanley, public education for the American Civil Liberties Union's program for technology and liberty.

The hole could grow, especially as the second phase of the FCC's plan is implemented by carriers. They're installing the facilities that can track phones, while handset manufacturers are making phones with GPS.

A lot of the immediate concerns voiced by privacy advocates have been addressed. The phones now have a toggle function that allows the user not to send his position to the called party, except for E911 calls. The carriers' networks don't constantly track the whereabouts of everyone's phones. Privacy advocates had initially worried that not only would carriers use such information in the wrong way, but they could sell it off to third parties. Tracking wireless phones constantly through a carrier's network was too costly a way to implement the FCC's mandate, according to carriers, hence the decision to allow the more flexible phone-based capabilities.

Even though those concerns are fading, bigger ones loom and may be around for awhile. There hasn't been any concerted effort by anyone, including federal law enforcement, to address the gray area of wireless E911 information and wiretaps–and there probably won't be in the near future.

"The law needs to be brought up to date," Sobel says. "In the last year or so, we've asked the Department of Justice" what the procedure might be to get a warrant for E911 location information from a carrier, he says. "We haven't gotten an answer. We assume they can get it under lower and easier standards."

The "easier" standard might be the same procedure used for traditional "trap and trace" information. Warrants for telephone records through this procedure are granted all the time in criminal cases throughout the country. Because location information isn't a straight out wiretap, says Sobel, that information may be obtainable through the same procedure.

Unfortunately, it likely will take a long time to resolve. "This is slowly developing through court case law," says CTIA's Altschul.

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