Bob Barr

Other Shoe Has Dropped

The Atlanta Journal-Constitution

December 6, 2006

In the 1960s-era TV show "Get Smart," whenever the protagonist—secret agent Maxwell Smart—required an absolutely secure environment to discuss a top secret project with his boss, he would ask that the "Cone of Silence," a huge Plexiglas dome, be lowered to shield their conversation from prying ears.

The Cone of Silence was obviously and amusingly ineffective, of course, but even had it served its purpose, in today's high-tech world, the KGB or whatever hostile agency Agent Smart might be trying to evade would be able to pick up whatever conversations they wished simply by using the very cellphone in Smart's shoe.

Modern cellphones are nothing more than miniature computers with small but sensitive microphones attached. Law enforcement agencies are discovering the significant benefit of drawing on that powerful combination of technology, by increasingly seeking court permission to use cellphones in the hands of suspects as surreptitious listening devices. Unfortunately for anyone who happens to be nearby, cellphones thus utilized as listening devices will pick up their conversations as well.

This latest example of electronic snooping should draw attention to the need for comprehensive national legislation to more clearly define the privacy rights of American citizens. Thus far, Congress has shown itself completely uninterested in addressing such fundamental civil liberty issues, much to the delight of the administration of George W. Bush, which continues to push the envelope of electronic snooping as far as possible.

In the most recent case, a federal judge in New York authorized the FBI to use cellphones belonging to alleged Genovese crime family members to listen to and record conversations in the vicinity of the phones. The government was not limited to conversations involving the tapped phone or the person using it. Unlike court orders applying to such surveillance in years past, the government is now seeking—and courts apparently are granting — orders allowing the feds to use cellphones belonging to or merely carried by suspects, to record conversations even if the phones are not being used or even turned on. A cellphone thus utilized will pick up whatever conversations take place anywhere in the vicinity.

If a suspect against whom the government has obtained such a "roving wiretap" order is seated in a restaurant with their cellphone in their pocket, and you and your girlfriend happen to be seated at a table nearby, your conversations—which you intend to be and which you have every expectation will be free from government eavesdropping — might be picked up and recorded.

I first became aware that the federal government wanted to outfit regular phones—so-called "land lines"—with devices that could be activated remotely by government investigators to allow agents to hear whatever was being spoken into or near the receiver, about 10 years ago, shortly after I was elected to Congress.

At the time, the Justice Department was trying to require telecommunications companies to incorporate technology in their phones to enable the government to engage in such surreptitious listening. The law the government was trying to use to do this was passed in the early 1990s and called the Communications Assistance to Law Enforcement Act.

We stopped the government from such heavy-handed and privacy-invasive directives at the time, but in the post-Sept. 11 world, with a Congress almost completely submissive to executive branch entreaties to increase its powers to invade citizens' privacy, such efforts appear now to be quaintly outdated.

In fact, the technology as described by reading between the lines of the court order in New York appears to be precisely what the government sought a decade ago for land lines. While the New York case is one that many might find compelling to justify such expansive government surveillance, law-abiding citizens should nevertheless demand that Congress act now to get a handle on the extent of the coerced technology that appears to have made this surveillance possible.

We should also force Congress to place limits on the extent such technology might be employed in circumstances where private and lawful conversations might be picked up. In the absence of such limits, it is only a matter of time, for example, before the government starts asking courts to allow it to surreptitiously take photographs with cellphones thus equipped. Perhaps it already has.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.