Washington— The collective ear of the capital-in-the-throes-of- summer-doldrums has been hopelessly cocked toward New York. Insipid New York, anyway: between the kinder, gentler riffs of the retooled Rudy, Hillary’s continuous “clarifications,” and the bilious buzz coursing out of Tina Brown’s new west 57th street HQ, the Empire State sounds more like The Jerry Springer Show than the nation’s bellwether. Drowned out in the deluge: a celebration of current federal orthodoxy in the form of a death blow to a uniquely New York privacy measure, thanks to a ruling last month by the Court of Appeals in Albany.
“What happened on July 6 shows a disturbing judicial inclination, or rather disinclination, to exercise supervisory control over the conduct of electronic surveillance,” says James Dempsey, senior staff counsel at the Center for Democracy and Technology. “New York was singular in the explicitness of this particular protection. The bottom line here is that law enforcement finally convinced the court that this was a bad idea.”
At its outset, few would have expected People v. Martello to presage such a nuanced change in New York electronic-surveillance law. In 1993, Paul Martello and nine other officials of Plumbers Union, Local 2— first AFL-CIO president George Meany’s old local— were indicted on racketeering charges. The investigation was conducted during 1991 and 1992 and included the use of pen registers— devices used to identify and record phone numbers dialed from a line. (Pen registers are supposed to be used solely for logging phone numbers, but some can easily be converted into eavesdropping devices.) Despite the facility with which some pen registers can be converted, they aren’t considered eavesdropping devices under federal and most state laws; hence police are not required to get a warrant based on “probable cause.” Instead, relevance to an investigation or a standard of “reasonable suspicion” is generally mandated to obtain a court
order— which, because of the lower standard, courts are virtually obliged to grant.
Until last month, however, “reasonable suspicion” wasn’t good enough in New York. The state Court of Appeals, in its landmark 1993 ruling, People v. Bialostok (the case involved the use of pen registers in a bookmaking investigation), held that because the potential for pen register abuse was high, law enforcement officials had to meet the probable-cause standard and obtain warrants to use them. “The court showed special respect for privacy in recognizing the danger inherent in the use of convertible devices,” says Dempsey. “It held to the principle that it wouldn’t rely on the essentially unreviewable good faith of law enforcement agents not to listen in when they have the means but not the authority.” Martello’s lawyers argued that even though pen registerbased evidence gathered against him was obtained before Bialostok, it was relevant to his case.
While the judge in Martello found that Bialostok couldn’t be applied retroactively, other lower-court judges have ruled differently; by the time Martello reached the Court of Appeals, the appellate jurists had some reconciling to do. Rather than simply determine that Bialostok did not apply, the court went further, holding that a 1988 New York criminal statute— which requires only a court order, not a warrant, for pen registers— ultimately governs pen register use. Intriguingly, both Bialostok and Martello are consistent with the Constitution; though the U.S. Supreme Court ruled in 1976 that the interception of phone numbers isn’t a Fourth Amendment violation, Bialostok considered the potential for police abuse of pen registers to be a clear threat to the Constitution. However, Martello— though based on New York, not constitutional, law— echoes the Supreme Court’s decision.
And since the Supremes gave pen registers a green light, cops and prosecutors have presented them as a sort of middle-path technology; as their partisans maintain, use of the devices is less intrusive than listening in on actual conversations, and they’ve been an almost indispensable tool in organized-crime investigations. But as technology develops, privacy advocates are making the case that the capture of phone digits really is on a par with eavesdropping on conversations.
“We have always believed that transactional data which links one person to another is as sensitive and as personal as the actual content of a communication,” says David Sobel, general counsel for the Washington-based Electronic Privacy Information Center. “There are many instances where the linkage between two people can appear more telling than actual conversations, because it only tells part of the story.” That New York would strike down a higher
protective standard in the midst of a five-year battle between the feds and privacy advocates, is, says Sobel, disappointing. In the waning hours of 1994’s 104th Congress, the House and Senate passed— and Bill Clinton signed into law— the Communications Assistance to Law Enforcement Act (CALEA), a statute that requires the communications industry to make its ever-evolving infrastructure as surveillance-friendly as possible.
While the industry was denounced for eventually supporting the bill (a $500 million taxpayer-funded reimbursement to subsidize technological compliance made it much more palatable), the telecom sector has been growing less cooperative, partially because of how the government wants to use— surprise— pen registers. The reason: the FBI’s proposals for how the Federal Communications Commission should determine and implement CALEA’s specifics. After the bill passed, the FBI submitted a regulatory wish list to the agency. Private enterprise and privacy advocates alike were taken aback. “Part of the FBI’s CALEA list involves trying to expand pen registers to grab content,” says David Banisar, a Washington electronic-
privacy attorney. “Pen registers should only record the numbers I use to dial another
person’s phone. The FBI, however, is trying
to extend CALEA so the registers can legally record any numbers you punch after you’re
connected— anything from voice mail access numbers to credit card digits. That the courts have ruled anything beyond the actual phone number is content doesn’t seem to bother them.”
It does, however, bother the communications industry— not so much out of privacy concerns, but because of costs. While the FCC has promulgated interim CALEA standards, the law’s implementation in its yet to be determined final form has been delayed until next year since the industry argues that there’s no way it can reasonably meet (or afford to meet) the FBI’s demands. While all the parties are trying to hammer out an acceptable resolution, not only is CALEA’s future unresolved but the U.S. Telephone Association (an industry trade group) is asking a federal court to declare CALEA unlawful on the grounds that the FBI’s requests are “arbitrary, capricious, an abuse of discretion, and contrary to law and [in excess of] the FBI’s statutory authority.” Among other things, the USTA cites the FBI’s failure to tell the industry how pervasive the use of pen registers will be.
Dempsey sees the New York ruling, though troubling, as an opportunity to use technology to force a showdown with the state on the letter of the law. “Congress, in 1994, said that you should use the device appropriate to the authority you have, and don’t ask us to believe you’re never going to flip the toggle switch so you can listen to more than just a dialed number, yet we have no way of knowing that everyone is complying with that law,” he says. “The solution might be mandated pen register technology that only captures phone numbers and nothing else.”
However, given a recent report in the newsletter Intelligence, based on a leaked FBI CALEA memo— which discusses getting the FCC to approve the interception of all of a
suspect’s dialed digits, as well as getting the power to order the disclosure of a wireless user’s coordinates— Dempsey’s call for a
compromise seems more likely to meet at best with a disconnect.