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Tuesday’s ruling by the U.S. Court of Appeals for the D.C. Circuit is a blow against government attempts to tap cell phone calls and could undermine the FBI’s e-mail tapping program, Carnivore, privacy advocates say. The court struck down parts of a 1994 FCC act, the Communications Assistance for Law Enforcement Act, that established requirements for telecommunications companies to permit wiretapping of both wireless and wired communications. It placed significant limitations on what kind of information the government can get without a search warrant. Originally, CALEA did not apply to e-mail or Internet-based communications, so this ruling further defines how it does apply. E-mail and instant messaging over cell phones and other wireless devices fall more clearly than ever into the category of content, which requires a warrant for probable cause to commit a crime. CALEA required that carriers install equipment to provide all the numbers dialed by a wiretap subject after the first call, in case the user was using a calling-card number. Privacy groups argued that a calling-card number could be considered personal information, like a credit-card number. The court struck down this particular requirement. “The court of appeals says anything you enter after the call is content,” says James Dempsey, senior staff counsel for the Center for Democracy and Technology. “Obviously, people are going to use the touch pad to send messages, and the FBI was trying to say that everything you punch in is not protected and can be accessed by the government under a minimal standard. And now the court has said no.” The court also ruled on another contested point, whether law enforcement officials can get a user’s general location from the cell phone. It said that the information should be obtainable but under a tougher standard than what is required to get just a phone number. Privacy groups also see the ruling as a blow against Carnivore, the FBI’s program to tap e-mail communications at the ISP level. According to David Sobel, general counsel for the Electronic Privacy Information Center, the court has indicated that the content has to be stripped from the packet before revealing the header information (which tells you the sender and the receiver of the data, or the equivalent of getting phone numbers). “The FBI says they’re stripping out the content,” says Sobel, “but it’s they who are doing the stripping. I don’t think that they have the legal right to now.” Related articles from The Industry Standard Making Japanese Telcos Safe for Democracy EPIC to FBI: While We’re Still Young, Please Surveillance Proposal: Half Empty or Half Full? Copyright (c)2000 The Industry Standard

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