Are the Police Digging into Your Phone Records?
A congressional inquiry into online data brokers has raised concerns that federal and local law enforcement may be skirting privacy laws to obtain calling records
By KRISTINA DELL
Posted Sunday, May. 25, 2008
ILLUSTRATION BY ED YOZWICK/ NEWSCOM
The National Security Agency may not be the only one looking at your phone records. As the agency’s controversial program of collecting Americans’ calling data continues to draw heat, new questions have emerged about whether federal and local law enforcement officials are possibly skirting privacy laws by obtaining phone records from companies that get the information in a questionable manner and then hawk it over the Internet.
Since February, Congress has been investigating such so-called data brokers for the ways in which they gather their information. Some of them use people inside the phone company who are willing to divulge the data. But more commonly, these businesses obtain phone records through an illegal practice known as "pretexting," in which someone calls up the phone company and impersonates a subscriber to con the service representative into releasing copies of the records.
The possible connection with law enforcement came to light when the data brokers were asked as part of the Congressional inquiry to submit letters revealing their client lists. One data broker listed as clients the FBI and unspecified "foreign governments," while another claimed to have done work for the Department of Homeland Security. Neither company will reveal the extent of the data they gave out....It remains an open question whether law enforcement obtaining the private phone records of Americans in this fashion is actually illegal. While most data brokers claim there is no specific law against the sale of phone records, as there is with banking records, and therefore it should not be illegal, the Federal Trade Commission and numerous state attorney generals disagree. Collectively, they have brought more than a dozen cases against data brokers based on state and federal statutes governing unfair and deceptive trade practices.
Information brokers insist they provide a valuable service to creditors, attorneys and private investigators "to catch bad people" — among them stalkers, fugitives from the law and deadbeat dads. Although data acquired through pretexting is not admissible in court, such information can be useful as an investigative shortcut, without having to wait for a warrant or subpoena.....The House Energy and Commerce Committee's probe into data brokers has been dogged by controversy. Robert Douglas, an information security consultant who runs PrivacyToday.com and was hired to do research for the committee, resigned in April because he felt allegations that the FBI and Department of Homeland Security were purchasing phone records were not being investigated thoroughly enough. And a bipartisan committee bill to protect phone records by outlawing pretexting was suddenly withdrawn just before a full House vote in early May. Some Democrats suspect there may be a connection between the pulling of the bill and the recent revelations of the NSA's collecting of citizens' phone records. Democratic committee members sent a letter to Chairman Joe Barton, asking if the bill was withdrawn so that the Intelligence Committee could add an exemption allowing phone records to be sought for intelligence gathering purposes. In a separate letter to Barton and Speaker Dennis Hastert, Rep. Edward Markey wondered whether there was a plan to add an exemption "to clarify the legality of such a program because they are currently gathering such records today without clear authority." An Intelligence Committee spokesman told TIME that the bill was pulled because more time was needed to determine how it might impact national security issues....
http://www.time.com/time/nation/article/0,8599,1197918,00.html?cnn=yes 
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