Protecting Phone Privacy p.

By: Debra Gersh

Protecting Phone Privacy p.
Legislation slated for introduction would protect privacy of
telephone records of individuals (journalists), small businesses
THE FACT THAT every person with a telephone faces potential invasion of privacy should be of special concern to journalists trying to protect confidential sources.
Legislation is slated for introduction, however, that would protect the privacy of the telephone records of individuals and small businesses. Larger companies already enjoy certain protections.
"Every person who has a phone faces a potential invasion of his or her privacy," commented Rep. Edward J. Markey (D-Mass.), chairman of the House Committee on Energy and Commerce's Subcommittee on Telecommunications and Finance.
Rep. Markey recently chaired a hearing on the Telephone Consumer Privacy Protection Act of 1993, which he is expected to introduce soon.
Current Federal Communications Commission rules, Rep. Markey explained, protect only telephone customers with more than 20 lines.
"Residential customers and most small businesses enjoy no protection in this area," he noted. "In my view the FCC ? not for the first time, I might add ? got it exactly backward. Consumers and small businesses need even more protection than larger businesses because they have less ability to fend for themselves against the telephone companies."
Gregory Millman, a New Jersey-based free-lancer, learned that firsthand in 1991 after he wrote an article about how the Internal Revenue Service was trying to restore a tax break to certain big companies despite a U.S. Supreme Court ruling that such breaks were illegal.
In an attempt to discover Millman's source for the article, agents from the Treasury Department seized Millman's long-distance telephone records (E&P, Aug. 1, 1992, P. 9).
During the course of the investigation, the agents also seized the phone logs from the Alicia Patterson Foundation, where Millman was slated to begin a fellowship, and from others Millman had called, all equally unrelated to the IRS story.
Neither Millman nor Margaret Engel, director of the Patterson Foundation, was informed that Treasury agents had subpoenaed the phone records.
Although Millman was informed in January 1992 that the Department of Justice intended to subpoena his phone log, the same information already had been turned over to Treasury agents.
In May 1992, Millman said, DoJ agents sought even more records.
Relating his story to the House subcommittee, Millman noted that none of the others whose records had been seized "had any idea that they had been swept into the drift net of a secret criminal investigation . . . .
"They didn't know, because there is no requirement that federal agencies notify people when agents are combing through records of every call they have made, making lists of whom they spoke with, seizing additional records from names on the list, combing through them, making more lists, etc.
"This type of investigation opens endless paths to the dogged investigator," Millman added. "One could assemble a complete chart of a reporter's entire network, map the connections and relationships among all members of that network, who calls whom, when, how often ? and all in perfect secrecy."
Lest anyone doubt the effect such an investigation can have, Millman said that since last November, when he was working on a follow-up to the tax story, "some of my most knowledgeable and cooperative contacts inexplicably failed to return my repeated phone calls."
In addition, Millman said he has avoided calling certain sources so as not to flag them in case an investigation is still going on.
"According to the courts, everything the government did to squelch these sources is perfectly legal," Millman said. "It shouldn't be."
Engel pointed out to the subcommittee that Millman's IRS story ran months before he began his fellowship with the Patterson Foundation, yet the phone records subpoenaed covered all the calls made by the foundation 13 months before he even joined.
It was not until four months later that the phone company sent a form letter to Engel's home ? where she runs the foundation from an attic office ? informing her that the telephone records had been given to the government.
"Being told that your phone company has copied the numbers of who you've called and who has called you gives you a feeling of violation," Engel testified. "I had a strong visual image of men walking up the stairs to my office and standing next to the foundation's telephone. It's a creepy feeling, to survey your own familiar room with the chill that someone has been there, taking things."
Engel also explained that "Because of past lawsuits by journalism groups, the Justice Department is supposed to notify journalists before it seizes telephone records, but the IRS and most other federal agencies do not feel bound by this agreement."
The privacy problem, however, should not be corrected just for journalists, she said. "Our telephones are electronic versions of our freedoms of expression and association. To have these contacts copied and distributed without a decent, or even common-sense reason, is unprincipled. It is undemocratic and should never be allowed," Engel told the subcommittee.
Bell Atlantic, one of the seven regional Bell operating companies, does not release customer toll records without a valid court order or subpoena, explained Edward D. Young III, vice president for federal regulatory matters and associate general counsel.
Although Title III of the proposed legislation would require a customer be notified within 10 days after the carrier gives the information to legal authorities, Young said that already is consistent with Bell Atlantic policy.
Bell Atlantic, which receives some 7,000 toll billing record subpoenas a year, in certain instances will delay notifying a customer that his records have been subpoenaed, Young added.
"First, Bell Atlantic will delay notifying a customer if we receive a valid court order directing us not to tell a customer that his or her records have been subpoenaed," he explained.
"Second, we will delay notifying a customer if a law enforcement agency or legislative body gives us a certification for nondisclosure informing us that customer notification could impede an ongoing investigation," Young said, adding that such requests must be renewed every 90 days, but if that expires, the customer will be notified.
While Young noted that the current proposal would not affect the way Bell Atlantic does business, he did mention that clarification of what qualifies as a law enforcement agency would help avoid disputes in the future.
Rep. Markey's bill requires that a customer be notified within 10 days after the phone records have been turned over to lawful authorities, unless the carrier is prohibited from doing so by a court order "or other lawful authority for the purpose of preventing the subject of a criminal investigation from being informed of its pendency."
The bill also addresses other issues regarding customer proprietary network information (CPNI), such as Caller ID and using records for marketing purposes.
Also testifying were: Richard L. Sampson, president, American Alarm and Communications Inc., on behalf of the National Burglar and Fire Alarm Association and the Alarm Industry Communications Committee; John P. McDonald, senior vice president and general counsel, the Reuben H. Donnelley Corp., on behalf of the Information Technology Association of America; John Sodolski, president, the United States Telephone Association; Betty J. Porter, owner of Ansaphone Service Inc., on behalf of the Association of Telemessaging Services International; and Kent Stuckey, general counsel, CompuServe Inc.