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Experts Say Wiretap Law Needs Digital Era Update

Soulskill posted more than 4 years ago | from the only-a-couple-of-decades-late dept.

Privacy 54

GovTechGuy writes "Experts at a Congressional hearing Thursday said the government needs to update the Electronic Communications Privacy Act to reflect changes in technology, notably location-based services. On one hand, legal experts argue tracking a mobile user's location should require a higher burden of proof than simply intercepting their communications. On the other hand, first responders may need location data in order to save lives and respond to 911 calls. Either way, expect legislation from the committee later this year."

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This law is only as useful as it is enforced (4, Informative)

CyprusBlue113 (1294000) | more than 4 years ago | (#32693620)

And the previous track record of stopping illegal wire tapping is abysmal...

Re:This law is only as useful as it is enforced (0)

Anonymous Coward | more than 4 years ago | (#32693764)

yeah

Either way (2, Insightful)

TheMeuge (645043) | more than 4 years ago | (#32694014)

Either way, expect legislation from the committee later this year.

A better prediction would be: "either way, expect everyone you don't want to, to have access to your location data without a court order or notification later this year".

Why implant tracking devices into the population, if you can get them to willingly carry the tracking devices with them.

Now, just ensure that the cell phones can be remotely turned on to listen to people's conversations, and you can start building the kind of government from which there is no escape at all.

I think that within the next 10 years, we either have to learn to live with the idea that EVERYTHING we do or say EVERYWHERE is recorded for subsequent analysis, and WILL be available to the worst of people at the worst of times... or we have to consider that we might need to perform a fairly substantial shakeup of our society in order to avoid it.

My prediction: we'll learn to live with it. Those who won't, will not be part of the living group.

Either way, expect legislation (1, Informative)

Anonymous Coward | more than 4 years ago | (#32693664)

The most prescient statement in the write-up.

Re:Either way, expect legislation (1, Insightful)

Anonymous Coward | more than 4 years ago | (#32694734)

Also add the corollary: If compromises are to be achieved, expect the worst of all worlds.

Just require immediate disclosure (4, Interesting)

Anonymous Coward | more than 4 years ago | (#32693684)

Require any tracking of location to be disclosed to the target immediately. This is easy for the firetruck or EMS to handle because they've got the coordinates and they're responding immediately.

Re:Just require immediate disclosure (1)

ShadowRangerRIT (1301549) | more than 4 years ago | (#32694256)

Of course, the trick is to inform the target in a way that doesn't inform those around them. My phone automatically lets out a "whoop" sort of noise when I call 911 which I believe is informing me that it is now making my location data available. This seems like a reasonable thing, but if you're calling to report a home invasion of some sort and you're hiding from the person who broke in, the loud whoop seems like a serious problem. In fact, any noise or light seems to be a problem in that sort of scenario.

Re:Just require immediate disclosure (3, Funny)

jimbolauski (882977) | more than 4 years ago | (#32695106)

Just change the sound to have it make a shot gun ratcheting noise.

Re:Just require immediate disclosure (2, Interesting)

paeanblack (191171) | more than 4 years ago | (#32694418)

This is easy for the firetruck or EMS to handle because they've got the coordinates and they're responding immediately.

Not necessarily. You could be reporting a fire in your downstairs neighbor's apartment. Imminent danger to human safety trumps privacy rights if they are in conflict. In some cases, imminent danger to property can also trump privacy. You want the fire department to put an axe through your neighbor's door now, not after calling his hotel room in the Bahamas. Society is pretty okay with emergency services barging in wherever they deem necessary, and gives them the benefit of the doubt in borderline cases. Generally, it has not been a problem.

Police, on the other hand, act as both emergency services and do investigative work. In the first role, society is also okay with them exercising the same privileges as other emergency personnel, but not okay with them extending those liberties into performing the second role.

What we really need is a more formalized and audited method for police departments to use a Chinese Wall to separate their roles.

Re:Just require immediate disclosure (1)

DarkOx (621550) | more than 4 years ago | (#32694768)

That is not an issue at all or at least not the issue. The grand partent wanted the operator of the device to be informed imediately when when their location is being reported or accessed. That could be something as simple as the words "Location tracked" printed on the cell phones display. Its your location that is being remported and you who needs to be informed of this fact. If you want the fire department to break down your neighbors door because you see smoke, they don't need to inform your neighbor his location is being tracked at all because its not being tracked!

Re:Just require immediate disclosure (1)

Imrik (148191) | more than 4 years ago | (#32695342)

Except, if you are reporting the fire, it will be your location data that's tracked, they don't need to figure out who owns the property, what their phone number is or where they are.

Re:Just require immediate disclosure (2, Insightful)

TheCarp (96830) | more than 4 years ago | (#32694434)

Interesting solution to the wrong problem.

What they need is easy access to the data, in event of an emergency, and a way to make sure that bypass of the long procedure is ONLY used in emergency. This is, sadly, NOT Uncle Sam's strong suit.

Take Miranda rights. At first, they read them when you got questioned. Then it was decided that, in cases of emergency, that was not needed, and they could delay reading miranda, to deal with an emergency situation. Ok Fair enough.

The problem is, this just opened the door to the death of miranda. The times square bomber, for example, had his miranda reading delayed for many hours. I just don't see how they can question him for all that time and still claim that it was due to an emergency that they didn't read him his miranda rights.

But, now that the lame excuse can be used, it gets used, now EVERY case is a potential emergency. May as well have written the Miranda decision on toilet paper now that the supreme court has all but reversed on it.

-Steve

Re:Just require immediate disclosure (1)

Urza9814 (883915) | more than 4 years ago | (#32695368)

What they need is easy access to the data, in event of an emergency, and a way to make sure that bypass of the long procedure is ONLY used in emergency. This is, sadly, NOT Uncle Sam's strong suit.

You propose a legal solution, when a technical one would be better. In fact, a technical one already exists. When I dial 911, my phone automatically transmits my location along with the call. When I call anyone else, it doesn't transmit the location. All you really need to do is ensure that location data is only sent to the person you are calling, unless you go through the long legal process. And that's something that, AFAIK, is already done in most cases.

Re:Just require immediate disclosure (1)

Tacvek (948259) | more than 4 years ago | (#32695974)

Whoa! the rule is simple. If it is an emergency, and the service in question is acting in a way that would help the person being tracked they can get immediate access to the data. This is the case be it somebody reporting their house is on fire, or that they need an ambulance, or that they are under attack.

However, even in an emergency it would require a warrant to track somebody who is not direct helped by the tracking, such as tracking a suspect under investigation.

If there is doubt, you err on the side of caution, and get a warrant. for example if tracking somebody you think might have been kidnapped, that would normally fall under the first category, so if there is strong evidence of a kidnapping, such as a ransom note, you use it immediately, otherwise you get a warrant. If a person is simply missing, it is not nessisarally a reasonable assumption that they want to be found. You should need some strong evidence to support that idea. So you cannot assume it is in their interest to track them, so you would need a warrant. A ransom note means you can be reasonably confident the missing person would want to be located. So you don't need to get a warrant first. If it turns out the person faked their own kidnapping, then by making it appear that they would want to be located urgently, they implicitly permit the police to violate their privacy to find them.

What about my street address? (1)

UBfusion (1303959) | more than 4 years ago | (#32696586)

My "location" is in the public record - it's called "my street address". Since I can't hide my street address, all the other "private" location data are a minor detail.

Expiration (2, Insightful)

MillionthMonkey (240664) | more than 4 years ago | (#32693814)

"The previous section of this Act expires in 5 years from date of enactment."

How hard is that? They know that five years from now they'll never let something like this expire without an updated version to replace it.

Re:Expiration (3, Insightful)

0100010001010011 (652467) | more than 4 years ago | (#32694118)

ALL laws should have an expiration date. If something still makes sense in 5/10/15/20 years, it will get repassed.

My town still has crap like "You can't walk through any city property with a watermellon and fishing pole" from the 1800s.

Re:Expiration (1)

PolygamousRanchKid (1290638) | more than 4 years ago | (#32694440)

My town still has crap like "You can't walk through any city property with a watermelon and fishing pole" from the 1800s.

Now you've stirred my historical perspective curiosity. There must have been some reason for that law being passed.

For the fishing pole, maybe they had a big problem with illegal fishing/poaching on city property? So just ban all fishing poles. Maybe the "no concealed weapons in bars" laws in Texas today will look silly in 200 years? Just like this Electronic Communications Privacy Act law might.

For the watermelon, maybe the city had a monopoly watermelon concession on city property. They wanted to prevent black market watermelon sales.

Or maybe some folks back then were just into some weird kink involving fishing poles and watermelons on city property? And that was too much for God-fearing folks to stomach.

At any rate I would visit your local library and the old folks home in your town, and ask, "What was up with this fishing pole and watermelon stuff?

Re:Expiration (0)

Anonymous Coward | more than 4 years ago | (#32694652)

I think he was being facetious.

Re:Expiration (1)

omnichad (1198475) | more than 4 years ago | (#32694662)

More likely this is small town politics aimed at one specific person they didn't like rather than a behavior or activity. Then again, maybe someone was using watermelon chunks as bait, and the fish were choking on the seeds. So they made it illegal to look like you were going to attempt that.

Re:Expiration (1, Funny)

Anonymous Coward | more than 4 years ago | (#32696040)

My guess would be that if that law was real it was enacted as a subtle way of signalling out poor blacks. Fishing as a means of providing food is well known amongst us poor and everyone knowns how much we like our watermelon.

Mod Parent Funny!! (0)

Anonymous Coward | more than 4 years ago | (#32702040)

+1 Mod Parent Funny!!

Re:Expiration (1)

DutchUncle (826473) | more than 4 years ago | (#32694580)

And when they expire, the renewal should be an updated expiration date, not "Let's make this permanent" like the Patriot Act. I still don't understand why the only choices presented at that time were all or nothing.

Should be able to deny E911 location (3, Insightful)

Anonymous Coward | more than 4 years ago | (#32693886)

On all cell phones it says allow others to use location service or emergency only. No way to ever turn off the locator. Then they would be required to get a warrant to go get the cell phone tower data. So at that point they would definitely need some burden of proof to get that information, most of the time.

Re:Should be able to deny E911 location (3, Interesting)

Anonymous Coward | more than 4 years ago | (#32695206)

Here's an idea: Emergency services can look at the data any time they want, BUT if they look at it without a warrant, it becomes forever fruit of the poison tree. Completely inadmissible in court. AND, anything they get from what they find from that line of evidence is also poisoned.

Ambulances and fire rescue and such wouldn't care, and thus have no hinderance. Police, on the other hand, would have to be very careful and get a warrant, lest they completely screw their investigation.

how did we manage (1)

FuckingNickName (1362625) | more than 4 years ago | (#32694028)

How did we manage to indicate to emergency services where we were before cellphones with GPS? Did we all die?

Re:how did we manage (2, Informative)

mshannon78660 (1030880) | more than 4 years ago | (#32694102)

We called from landlines, and emergency services used the database of location information provided to them by the phone companies that installed the landlines. And yes, if someone was injured in a location without telephones, they did often die.

Re:how did we manage (2, Informative)

Wiarumas (919682) | more than 4 years ago | (#32694128)

You had to use a land line, which was associated with a certain address, or you needed to tell the operator where you located.

Re:how did we manage (2, Insightful)

Jah-Wren Ryel (80510) | more than 4 years ago | (#32694510)

or you needed to tell the operator where you located.

Bingo. Same way it is now with cell phones. I'll swag it, but I doubt that more than 1 in 100,000 E911 calls are the kind where the caller is unable to tell the operator their location. It makes for high-tension commercial-break cliff-hangers to have the protagonist dial 911 and then pass out, but in real life that seems highly unlikely.

Re:how did we manage (1)

omnichad (1198475) | more than 4 years ago | (#32694672)

But at least they can dispatch someone to a rough location while asking where they are.

Re:how did we manage (0)

Anonymous Coward | more than 4 years ago | (#32694782)

Do you always know exactly where you are on a 400 mile stretch of highway that all looks the same?

Re:how did we manage (0)

Anonymous Coward | more than 4 years ago | (#32694872)

Do you always know exactly where you are on a 400 mile stretch of highway that all looks the same?

Don't need to. It's a highway. Rescue services just starts at the last exit you remember and goes forward looking for the accident. Same thing they would have to do in any case.

Re:how did we manage (2, Insightful)

peragrin (659227) | more than 4 years ago | (#32694936)

Actually it was closer to 1-100

Remember police or EMS pulling up to the house two doors down can delay response time by five minutes or more. There are also numerous cases of ems responders pulling up to a house finding out nothing was wrong and leaving only to find out they were on the wrong side of the road. Or having the wrong apartment number out of hundred of possibles.

The person doesn't have to pass out either having a hard time breathings also causes trouble.

E911 locationion data was passed as laws as the average person with a cell phone doesn't know where they are. Instead of sounding smug why don't you study some history. While there are stupid laws in the USA most were passed for reasons that actually make sense when you understand the average person is an idiot.

Re:how did we manage (1)

Jah-Wren Ryel (80510) | more than 4 years ago | (#32697962)

Actually it was closer to 1-100

If your going to dispute my swag, you really should cite your sources. You know, that "history" you smugly refer to?

Re:how did we manage (2, Insightful)

Hotawa Hawk-eye (976755) | more than 4 years ago | (#32695010)

Passing out is just one reason a caller may not be able to tell the operator their location.
  • The caller may be physically able to tell the operator their location but may also be extremely scared and/or panicked and so unable to respond coherently to the operator's request for their location.
  • The caller may be in unfamiliar surroundings and so not know exactly where they are ("I'm somewhere along Route 23, but there's nothing I can see in either direction".)
  • The caller may not be able to explain very well where they are (particularly if the caller is a young child calling because of a medical emergency or a non-native English speaker.)
  • The phone is ripped from the caller's hand by an assailant before they have a chance to tell the operator their location.

I wouldn't have a problem with my phone's location being sent to the 911 dispatcher if I initiated the call -- I'd be willing to volunteer that information in that situation. I wouldn't be quite as happy if someone else could ask my phone where it is without my knowledge/consent -- if you want to ask my phone to provide that information, ask me first.

Re:how did we manage (3, Insightful)

weicco (645927) | more than 4 years ago | (#32694160)

"Needs digital era update" equals "We need law that enables us to track every citizen when ever we feel like it". It's a synonum to "would someone please think about the children" card. And believe me, there's plenty of people who welcome these laws with open arms because "I got nothing to hide. You obviously do, which tells that we need this law". I've seen this many times in our local Finnish news sites.

Re:how did we manage (1)

b0bby (201198) | more than 4 years ago | (#32694556)

It's a synonum to "would someone please think about the children" card.

It's funny you should say that, but I'm interested in this because of my children. My kids are old enough to be home alone sometimes, but not old enough to have their own phones yet. The only reason I still have a landline, really, is for them to use when they're home alone. I've considered porting the number over to a prepaid cellphone which I could just leave plugged in for them to use, which would have the advantage that our "home" phone could come with us when traveling. So I am interested in having an E911 system that works well, in case my children need to call it. I am not, however, interested in law enforcement being able to track everyone on a whim.

Re:how did we manage (1)

stubob (204064) | more than 4 years ago | (#32695006)

Smoke signals.

Re:how did we manage (1)

whoever57 (658626) | more than 4 years ago | (#32695216)

My phone doesn't have GPS, yet the tracking for emergency services is pretty accurate.
Some time ago, I called 911 to report the presence of an obstruction on a freeway. Before I spoke to anyone, the phone call was redirected to the highway patrol and I received an automated message telling me that they knew about the obstruction. To do this, they would have to have a farily accurate location for me and this was without GPS.

Re:how did we manage (0)

Anonymous Coward | more than 4 years ago | (#32696660)

I'm confused. You called 911 and the first thing you heard was a recorded dismissal based on a guesstimate of your reason for calling? Eep. That sounds like possibly the worst application of GPS ever.

But maybe you specified the problem and the operator immediately transferred you to the recorded message, which is OK-ish procedure (maybe you had something new to report too!) but not necessarily based on accurate GPS.

Re:how did we manage (1)

innocent_white_lamb (151825) | more than 4 years ago | (#32700296)

A couple of years ago I called 911 to report a burglary in progress across the street. I got PUT ON HOLD for a few minutes before I could talk to anyone at all. "All of our lines are busy, please hold..." and so on.
 
I used to think that "You know you're having a bad day when... you call 911 and they put you on hold." was a joke. Apparently it's not.
 
I wrote a letter of complaint about this matter to the City Council, but nothing was ever done other than sending me back an acknowledgment of receipt.

Wiretapping shouldn't cover videos of cops. (2, Insightful)

Anonymous Coward | more than 4 years ago | (#32694156)

Stories of this are all over the web, some abusive cop is walking all over somebody's rights, someone else starts recording them on their cell phone, and the Good Samaritan is arrested for filming the cop under wiretapping laws. Even though it's right out in public and there may be five or ten security cameras recording the same area 24/7.

http://www.techdirt.com/articles/20100603/0859019675.shtml

Re:Wiretapping shouldn't cover videos of cops. (1)

freezway (1649969) | more than 4 years ago | (#32694624)

1984 != instruction manual

Re:Wiretapping shouldn't cover videos of cops. (0)

Anonymous Coward | more than 4 years ago | (#32695472)

what does video filming have to do with communication taps?

Re:Wiretapping shouldn't cover videos of cops. (1)

MichaelJ (140077) | more than 4 years ago | (#32695582)

It varies from state to state, but in Massachusetts they get you for the unlawful audio portion of the recording ... based on a wiretapping law.

Track Record of Tracking and Recording (0)

Anonymous Coward | more than 4 years ago | (#32694224)

Expect Congress to err on the side of taking further 1st and 4th Amendment rights away from citizens and residents. Err dramatically.

Law Enforcement == Law Obedience (0)

Anonymous Coward | more than 4 years ago | (#32694262)

It might be a little too easy to request the ability to track cell phone user locations for law enforcement. The cell phone companies make it easy. It is as easy as determining which router a ISP user connects to or a multitude of other examples ./-ers would be familiar with. Technical ease does not equal legal ease. The recent investigation into the Kyron Horman disappearance shows how fast and routine these requests are. Almost as a matter of procedure Kyron's Stepmother had her cell phone locations checked. As someone who might have gotten a speed camera ticket last night, I question the use of technology in this way. The ease of these technologies are stripping our rights, or at least making the playing field too level for law enforcement. If I want to fracture the speed limit at 1am to get home after a very long day of work, I should be able to without the flash of a speed camera taking my picture. On the other hand if such technologies catch a murderer then we all might have to accept them.

On another note, the "illegal wiretapping" was just privacy invasion on the order of a neighbor with a telescope. If a truly illegally gained piece of evidence was to be used in court, I'd imagine the whole case would be dismissed. In order for law enforcement to put people away they themselves have to follow the law. The NSA is welcome to read this, just as the MI5 or any other intelligence agency.. Inadmissible, non-invasive collection can happen all the time.. like my phone company can end up with my SMS messages and I am cool with that as long as they don't end up on "text from last night"...

Why bother with warrants ? (2, Insightful)

kjshark (312401) | more than 4 years ago | (#32694716)

Cop1: Let's get a warrant.
Cop2: Don't bother, just say they might be a threat to national security.
Cop1: Should we bother with the rubber stamp ?
Cop2: No one else does.
Cop1: Thanks, FISA !

http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act [wikipedia.org]

Translation (1, Informative)

Anonymous Coward | more than 4 years ago | (#32694806)

The police state needs an upgrade.

--
Toro

E911 Phase 2 Already Requires Location (1)

Isao (153092) | more than 4 years ago | (#32695068)

On the other hand, first responders may need location data in order to save lives and respond to 911 calls.

Enhanced 911 Phase 2 already requires wireless phone providers to deliver sub-300 meter accurate positions of 911 callers to the responding Public Safety Answering Point. This takes full effect in September 2012. 95% of subscriber phones were required to provide such location data by 2005.

So that entire section of the TFS is a red herring.

Re:E911 Phase 2 Already Requires Location (1)

GoodNicksAreTaken (1140859) | more than 4 years ago | (#32696328)

Several times we have had police show up at our building saying someone in the building dialed 911 and have to do a full scan of the building before leaving because someone set a notebook on their phone or somehow had the 9 button jammed down. Our company issued Nokia's for some reason were set so that if you hold down 9 it dials 911.

Wiretap updates (5, Insightful)

Wowsers (1151731) | more than 4 years ago | (#32695086)

A message to all the people in the US.

Dear Citizen,

We don't care about the courts or the Constitution with respect to your rights and privacy, and we will carry on doing what we like in secret.

Yours Sincerely,
Past / Present / Future President of the USA

I don't believe you Mr President (1)

UBfusion (1303959) | more than 4 years ago | (#32696680)

Do you know of any country, in any continent, in any period of written history (maybe even before that) that this was not happening, namely the leaders/chiefs/kings/presidents not being able to "carry on doing what they liked", either in the open or in secret?

Goose meet Gander (1)

martyb (196687) | more than 4 years ago | (#32695912)

I propose that to the fullest extent permissible by whatever law they propose, they further agree to have every member of goverment published in real time to a publically available website, and have it published in each day's conressional record.

Okay, the details may need some work, but I think the intent is clear. I'm open to any suggestions on improvement.

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