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Big Brother isn’t interested in snooping on honest folks’ calls

Relax. The chances are high that, unless you are involved in drug trafficking, terrorism or organized crime, no one cares very much about what you are saying.
The reality of wiretapping and call monitoring appears to be far more limited than most people believe is the case. However, the fabric of the law in the area of electronic eavesdropping is so complicated that it can’t be addressed with a single question anymore. To ask, “Is anyone out there listening?” is not enough.
There are many legitimate ways by which law-enforcement authorities can find out about your private communications. These are the most well-known: wiretaps (authorized under federal law only since the late 1960s); traps-and-traces (an older term, generically used to describe a procedure where calls to an identified line are locked into place and analyzed; this first was used to track the source of harassing or obscene telephone calls in the days before Call ID); pen registers (which record numbers that are dialed from a particular telephone line); and the old standby, court orders for billing or calling records.
There also are a number of ways recognized as acceptable for private entities, too, to lawfully monitor calls or collect related call information. Businesses with core functions that depend on accurate and courteous interaction with the public –such as airlines, stockbrokers and directory services–sometimes use service monitoring to ensure that the quality of their employees’ interaction with the public remains high.
Also, telecommunications technology now permits any company to purchase access to ANI—automatic number identification–or Call ID options. One of them allows a business to take incoming number information, match it in a data base and then display the name of the caller, even before the phone is answered.
The sensitivity of lawmakers and of civil-rights and privacy advocates is so strong here that areas of significant risk to privacy are well-guarded by safeguards designed to ensure that there is no abuse. (For a good archive of information in the area, I recommend the Web site of the Computer Professionals for Social Responsibility at http://www.cpsr.org.)
The basic rules governing interception of communications derive from two sources. The first is the Fourth Amendment’s ban on unreasonable searches and seizures, and the privacy “penumbra” in the Bill of Rights. In general, the boundary has been set at whether someone has an objectively reasonable “expectation of privacy” in the act or information involved. If so, it is protected.
The second influence on the rules is that statutes passed generally work from the presumption that any interception is out of the ordinary, and should be handled specially. For example, there are two overarching statutes on wiretaps, one for national security and the other more generically for criminal activity. There are three or four other statutes that also affect interceptions of calls and call data.
The rules are very detailed for handling a wiretap. Taps can be used only to investigate specific crimes identified in the statute. The power to ask for a federal wiretap rests with the Attorney General’s Office, and the power is carefully delegated within the Justice Department. In addition, a judge has to make certain findings to authorize them. There is a high burden of proof that has to be met. (It is a rare event, however, when an application to wiretap is denied. They tend to be well-researched, so almost every application is approved.)
But even when a law-enforcement agency gets a wiretap order approved, not everything on the line can be listened to or recorded. A number of other rules must be followed.
Proportionate safeguards apply to other privacy-related areas of telecommunications.
Let’s focus a minute more on the wiretap area, because it is probably the most prominent area of privacy concern in the public mind. Wiretaps provide a well-accepted plot line for many Hollywood writers, and eavesdropping is associated with many juicy newspaper stories. But the reality belies the perception.
In 1988, the number of federal court- authorized wiretaps for the entire United States hovered at only around 300. In 1992, the year before President Clinton was inaugurated, there were still only 340 court orders from federal courts for electronic surveillance in criminal cases.
Throughout the last four years, however, the number of federal wiretap orders has risen; in 1995, it was 672, almost double the 1992 figure. Nevertheless, that still reduces itself to an average of roughly one for every 350,000 people in the country–or, on average, a total of three for the Rochester and Finger Lakes region in any year.
The expansion has been driven mainly by the nation’s new commitment to fight narcotics traffickers, against whom two-thirds of the orders are issued. Only some 7 percent of wiretap orders fit into a generic “other” category, so the possibility of an average caller accidentally happening onto a tapped line is remote. (The 1995 figure does not include national-security wiretap orders.)
There are 37 states with separate wiretap laws. Because their laws must be no less protective than the federal law, these state laws mirror the federal wiretap laws in most respects. Some states use their authority fairly often, but in 1995, the total for federal wiretaps exceeded the number for all state courts combined.
The recent increase is real, more than 30 percent in a few recent years. The FBI projects that the number will increase by 104 percent through 2004. This is driven by drug concerns, but also by increased funding for law-enforcement authorities, which partially offsets the huge cost of wiretaps.
Federal wiretaps now cost more than $70,000 per month to operate, not to mention the time needed for administration, transcription, translation and follow-up investigation. But they are effective. The base wiretap orders average 28 days in length, cover maybe 1,800 calls during this time, and lead to two to three arrests per wiretap.
New technology threatens this activity. A law to address this was passed in 1994. It was lobbied personally by FBI director Louis Freeh but was still controversial because of its scope. It is intended to ensure that law-enforcement authorities will continue to be able to wiretap in a digital environment, where sorting out digital 0s and 1s is a lot different than watching conversations over analog circuits.
An important clarification: I cannot state emphatically enough that local and long-distance telecommunications carriers do not initiate these activities. The burden of initiating any interception lies solely with law-enforcement authorities. The laws allow a carrier to be required to assist in carrying out an order, but the order has to specifically require the carrier to do that; it also has to provide for fair compensation to them.
Law-enforcement personnel are the only persons authorized to actually enter and place a tap. This is consistent with the need to maintain a clear boundary between public servants and private businesses. Telecommunications firms are carriers because of the very fact that they do not become involved in assessing the content of calls. They transmit “indifferently”–and should not have any interest as carriers in what they are carrying.
They cannot police what is a legal or illegal message. That job is for government representatives only. Carriers cooperate with law-enforcement officials, as we all do, but do not become the arbiter of the law.
I have talked here primarily about governmental interception of telecommunications. There are others out there–some tabloids and the mischievous–that might find other ways to listen in on your calls. By its nature, the wireless area is more open to interceptions, and older scanners are still around that cover cellular frequencies.
The laws have been toughened in this area, however, and digital technology makes casual eavesdropping on cellular calls almost impossible. Current law now also generally prohibits the interception of most wireless transmissions.
But there are still a few court decisions that say that cellular-phone callers cannot assume the same expectation of privacy as other callers. This issue is also being debated for Internet communications. Nevertheless, in general, you are much safer than you think.
Now, about that secret you were going to tell me …
(Martin McCue is corporate vice president of planning and legal services for Frontier Corp.)


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