Law Enforcement Pushing For Law Requiring All Text Messages To Be Logged

If certain law enforcement organizations get their way, every text message you send will be logged by your carrier so that they can be read in the course of a criminal investigation if necessary:

AT&T, Verizon Wireless, Sprint, and other wireless providers would be required to capture and store Americans’ confidential text messages, according to a proposal that will be presented to a congressional panel today.

The law enforcement proposal would require wireless providers torecord and store customers’ SMS messages — a controversial idea akin to requiring them to surreptitiously record audio of their customers’ phone calls — in case police decide to obtain them at some point in the future.

“Billions of texts are sent every day, and some surely contain key evidence about criminal activity,” Richard Littlehale from the Tennessee Bureau of Investigation will tell Congress, according to a copy (PDF) of his prepared remarks. “In some cases, this means that critical evidence is lost. Text messaging often plays a big role in investigations related to domestic violence, stalking, menacing, drug trafficking, and weapons trafficking.”

Littlehale’s recommendations echo a recommendation that a constellation of law enforcement groups, including the Major Cities Chiefs Police Association, the National District Attorneys’ Association, and the National Sheriffs’ Association, made to Congress in December, which was first reported by CNET.

They had asked that an SMS retention requirement be glued onto any new law designed to update the 1986 Electronic Communications Privacy Act for the cloud computing era — a move that would complicate debate over such a measure and erode support for it among civil libertarians and the technology firms lobbying for a rewrite.

This is hardly the first time that the issue of data retention has come up in the context of electronic communication, though:

While the SMS retention proposal could open a new front in Capitol Hill politicking over electronic surveillance, the concept of mandatory data retention is hardly new. The Justice Department under President Obama has publicly called for new laws requiring Internet service providers to record data about their customers, and a House panel approved such a requirement in 2011.

Wireless providers’ current SMS retention policies vary. An internal Justice Department document (PDF) that the ACLU obtained through the Freedom of Information Act shows that, as of 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept metadata such as the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years.

This news comes at the same time that two unlikely allies — Americans for Tax Reform and the American Civil Liberties Union — have announced the formation of a joint project dedicated to Internet Privacy and meant to counter the efforts of law enforcement to grant themselves greater powers as part of reforms to the Electronic Communications Privacy Act:

Our proposal is simple: All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored. If government agencies want to read emails, they should go to court, show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.

We do not intend our reforms in any way to impede investigations of terrorism or serious crimes such as child pornography. We leave in place laws regarding child pornography. We preserve emergency exceptions for cases posing immediate threat of harm. We do not touch authorities for national security investigations and international terrorism. Our reforms focus on ordinary investigations, and all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.

Today we announce the launch of Digital 4th, an effort by the Center for Democracy and Technology, the American Civil Liberties Union and Americans for Tax Reform to give digital content the warrant protection the Fourth Amendment to the Constitution requires.

It is time to reaffirm in law what most Americans assume is an essential guarantee of living in the U.S.: that government power should be subject to basic checks and balances.

Sounds like a good idea to me.

FILED UNDER: Law and the Courts, National Security, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. CB says:

    Hey, if you haven’t done anything wrong, you have nothing to worry about. Right?

  2. Dave Schuler says:

    I think that’s a great idea. Maybe it should go into the same law as the one requiring that videos be made of all contacts between the police and private citizens (and explicitly allowing private citizens to video or record all contacts with police).

  3. edmondo says:

    Can we get a law that says we have to log in every contact our elected representatives make with any lobbyist or campaign contributor?

  4. Rafer Janders says:

    “Billions of texts are sent every day, and some surely contain key evidence about criminal activity,” Richard Littlehale from the Tennessee Bureau of Investigation will tell Congress, according to a copy (PDF) of his prepared remarks. “In some cases, this means that critical evidence is lost.

    Americans also have billions of conversations a day, and some surely contain key evidence of criminal activity. Couldn’t we require every American to wear a recording device 24-7 which would live-stream every single one of their conversations to police HQ? That way we could make sure that critical evidence is not lost….

  5. CSK says:

    How is this different from demanding that all letters sent through the mail be opened and copied just in case they include information about a crime about to be committed or that has been committed?

    And, Doug, you’re a lawyer. Suppose a client sent you a text? Wouldn’t that be a privileged communication?

    And suppose I texted my doctor? Wouldn’t that be a private communication protected by HIPPA?

    Suppose your pharmacy texts you about your prescription?

  6. Ben Wolf says:

    Oh, I can think of a few apologists among the OTB commentariat who will gladly defend such a measure. I mean, only criminals or bad people would need to hide something, eight?

  7. Ben Wolf says:

    @Ben Wolf: eight = right

  8. Tsar Nicholas says:

    This is one of those somewhat hysterical and quite legally ignorant blog posts that are so common on the Internet.

    The ACLU and ATF want warrant requirements, subject of course to exigent circumstances, for wireless communications. Well, yeah, duh. Sell me some more ice in the wintertime. Nobody is going to suggest otherwise.

    Meanwhile the law enforcement folks want text messages to be captured and stored, so that they have the ability to obtain them later on, via the necessary means. Sure, obviously, that makes sense, from the law enforcement perspective. They’re not suggesting that they have plenary, warantless rights to obtain the info. But obviously if the info is not there, because it’s simply not stored, then getting a warrant won’t help them.

    That’s it. That’s all that’s going on here. Not exactly the end of the known universe.

    Personally speaking, I would object to a federal law requiring the wireless providers to capture and store texts and e-mails. That would be overbroad. Mission creep would be written all over it. Unintended consequences and such.

    But by the same token, however, if anti-terrorism law enforcement were to get wind of a domestic terror cell, for example, they clearly should have the power to engage in warrantless direct surveillance of the attendant wireless communications, if necessary by summary special court compulsion. Civil liberties don’t mean all that much when, you know, you’re blow’d up to bits by genocidal Islamo-bots.

  9. rudderpedals says:

    Everything is already being captured by the three letter agency or our British friends and presumably screened for national security stuff. We learned that in the 2005 NY Times report.

    I’ll leave the history of “reforms” that hollowed out the ECPA for later or someone else.

  10. anjin-san says:

    Civil liberties don’t mean all that much when, you know, you’re blow’d up to bits by genocidal Islamo-bots.

    Some of us would rather die standing up for freedom than live crawling away from it.

  11. Ben Wolf says:

    @anjin-san: Never underestimate the cowardice of blog warriors and internet tough guys.

  12. Tony W says:

    Maybe they should regulate horse-and-buggy construction while they are at it. The kids have moved on to SnapChat now. Facebook, phones and texting are for old people.

  13. SKI says:

    @CSK:

    And suppose I texted my doctor? Wouldn’t that be a private communication protected by HIPPA?

    No. HIPAA doesn’t protect transmission to a provider, only from a provider.

    And HIPAA already prohibits text messaging as inherently insecure because of the third party transmission issue unless encrypted by a third party provider like TigerText.

  14. JKB says:

    @CSK: How is this different from demanding that all letters

    Letters are sealed, not given to a third party and transferred by the government, which has constitutional restrictions impose. Text messages and other internet comm methods are not protected from third party reading, provided to the third party (service provider) via intransit storage and those third parties may share the information in their possession at will, or more likely government threat of future difficulty.

  15. JKB says:

    @rudderpedals:

    The alphabet agencies don’t share.

  16. rudderpedals says:

    @JKB: The alphabet agencies don’t share.

    Good. The local yokels don’t actually need this material.