Privacy Advocates Win Ruling on Wireless Devices

A federal appeals court Tuesday handed privacy advocates a victory in their battle to rein in Big Brother, ruling that federal authorities want to go too far in expanding their authority to intercept cell phones, pagers and a new generation of communication technology.

The ruling scuttles, at least temporarily, parts of a controversial federal plan forcing telecommunication carriers and manufacturers to install devices in their systems that would make it easier for law-enforcement officials to conduct wiretapping and surveillance.

The FBI and other law-enforcement agencies have long complained that advances in telecommunications--particularly wireless technology such as cell phones--have made it much tougher for them to track and build cases against criminals, even with valid court orders.

Those complaints triggered a 1994 law mandating that police agencies be given the technological resources they need to monitor wireless communications. Many of the details, however, were left by Congress to the Federal Communications Commission to spell out over the last several years. The U.S. Court of Appeals for the District of Columbia made clear in its unanimous ruling Tuesday that it was not happy with some of the results.

The court, rejecting the FCC’s interpretations on several key issues, said that some of the commission’s efforts to balance privacy demands written into the 1994 law were “entirely unsatisfactory” and would have to be reworked before the FCC plan can be put into effect.

An attorney for the FCC, asked during oral arguments before the court how the commission dealt with privacy concerns on the interception of substantive information on pagers and the like, answered that “we addressed ourselves to the privacy questions with a little bit of hand-wringing and worrying.”

But the appellate court, in its ruling, answered: “Neither hand-wringing nor worrying can substitute for reasoned decision-making.”

The appellate justices also faulted the FCC for failing to ensure that “cost-effective methods” be used in implementing the new technology, as required by the 1994 law, which is known as the Communications Assistance for Law Enforcement Act.

By one estimate, telecommunications companies--and in turn the public--would have to pay 45% more in wireless manufacturing costs to comply with the FCC’s new demands for helping law enforcement cut through caller identification systems and other innovations.

The commission’s failure to address such financial concerns “reflects a classic case of arbitrary and capricious agency action,” the court said.

One provision thrown out by the court would have required phone carriers to provide to law enforcement agents all numbers dialed after the subject of a wiretap order connects a call. That was intended to ensure authorities could get the actual number being called, even if a suspect first used a 1-800 number or a calling card.

Privacy groups had argued that the provision could give authorities access to information beyond the scope of the wiretap such as credit card or bank account numbers.

The three-judge panel also struck down a provision that would have given investigators information about 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. Authorities with a court order also could have determined when someone was using call-forwarding, three-way calling or other features or when that person placed a call even if it was not completed.

FCC officials could not be reached for comment late Tuesday on the court’s ruling.

But privacy advocates hailed the decision as an important step in their efforts to show that the government has overstepped its authority in its quest to pursue digital-age crooks.

“This is a big deal for us,” said James X. Dempsey, senior staff counsel at the nonprofit Center for Democracy and Technology, a privacy advocacy group in Washington and one of six organizations that sued to block implementation of the FCC plan.

“The court has now clearly said that the commission cannot just give lip service to privacy,” he said.

Moreover, Dempsey said, some of the arguments laid out by the appellate court also “cast a shadow” over the legality of “Carnivore,” the FBI’s controversial program for sifting through e-mails and other documents on an Internet service provider’s server.