It may only be September, but those who worry about privacy and new technologies are definitely feeling a chill wind. On Aug. 27, the Federal Communications Commission issued an order that could turn every cell phone in the country into a homing beacon that law enforcement could use to track the general location of criminal suspects.
That news came just a week after reports of a new Justice Department plan to ask Congress for the authority to break into the homes of suspects to obtain the software "keys" necessary to decrypt data and messages, and to plant "recovery devices" on computers or take other action to ensure that law enforcement officials have access to anything on the machine.
And that news, in turn, came only weeks after word leaked of a Clinton administration proposal being readied that calls for the government to put surveillance features on all computers in government networks, and to encourage private networks to do the same. The goal: to spot patterns of suspicious hacker activity and to relay that information to a central computer defense agency for analysis. The side effect: A great deal of Internet surfing could be traced.
"All of the pieces taken together indicate a giant surveillance system being built," said Andrew Grosso, a former assistant U.S. attorney and computer expert who practices law in the District. "That may not be the actual intent," Grosso said, but "that is the repercussion."
Marc Rotenberg, who heads the Washington-based Electronic Privacy Information Center, is not willing to give government that benefit of the doubt. "We're seeing the interconnection for the building blocks of a surveillance state," he said.
When Congress passed the law that the FCC action stems from, the Communications Assistance for Law Enforcement Act of 1994 (CALEA), the notion was fairly simple: to help the good guys keep track of the bad guys despite fast-moving developments in communications technology. Police complained that cellular phone networks and other new techno-gizmos were being designed without features that would enable court-ordered wiretaps that have long been possible with old-fashioned phones. Soon, they said, criminals would be able to talk to each other without fear of eavesdropping.
The electronic privacy center and a number of other civil liberties groups opposed CALEA, saying the law would in fact extend police abilities far beyond the current state of affairs. Among their fears was the notion that the FBI would attempt to go beyond the limits they say Congress has set -- trying to turn cellular telephones into homing beacons, for instance.
One of the groups that helped draft the legislation was the Center for Democracy and Technology, a District high-tech policy group. James X. Dempsey, who monitors telecommunications issues for the group, said, "We thought we were creating a balanced statute," one that would keep the FBI from getting everything it wanted. "We got a specific assurance from [FBI Director] Louis Freeh -- we thought that location information was not covered by CALEA."
Since the passage of the 1994 bill, however, the FBI has pushed the FCC to require the industry to include cell-phone tracking and other features that civil liberties groups contend go beyond the scope of the law. "When the FBI director gets to set the technical standards for the nation's telecommunications system, clearly something is amiss," said Rotenberg.
An FCC official told me there is a balance in the new technical specifications for cell phones, which would allow law enforcement people to determine only the general location at which a cell phone was used. He argued that "we approached this looking at the law, listening to the arguments on both sides, and that is what we use in making our decision."
I called Clifford Fishman, a professor of law at Catholic University who wrote a leading text on wiretap law. "I am not troubled" by the new rules, he said, since so few conversations are actually intercepted by law enforcement and the authorities must get court orders to use the technology.
"I'm confident that the number and frequency of illegal taps is very low," Fishman said. He also said that since the police know the location of the wire-line phones they tap, the cell-phone location information simply gives law enforcement the same kind of information with the new technology.
It all comes down, he suggested, to whether you trust government to do the right thing.
But Rotenberg points out that not trusting government is part of the American way. The Fourth Amendment to the U.S. Constitution was written to guard against the excesses of law enforcement in conducting searches and seizures. "I do not think that this is consistent with the constitutional principles embedded in the American tradition," he said.
Dempsey says the problem with what he calls evolving police power over technology is that in the past, new technology has been a mixed bag for privacy-minded folks and for law enforcement: Cell phones, for example, initially offered users greater privacy, by allowing them to talk from anywhere, but at the same time their signals, broadcast over the air, could be intercepted.
Dempsey says the FBI plays the game differently: "They believe that the technology should always be a one-way ratchet in the direction of improving their capabilities."
John Schwartz's e-mail address is firstname.lastname@example.org