DOJ Seeks Cable Data, Telephony Access

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In an effort to infiltrate terrorist cells, the Department of Justice is
seeking legislation that would require cable operators to surrender subscriber
phone and data records without notifying subscribers for 90 days, according to a
draft of the bill.

With the nation on high alert after the devastating terrorist attacks Sept.
11, Attorney General John Ashcroft is urging Congress to give the DOJ new
authority to track, among other things, the data and phone traffic of suspected
terrorists who are cable-system customers.

According to informed sources, the DOJ is attempting to ensure that cable
operators do not face liability under the Cable Act of 1984 when law enforcement
seeks access to subscriber information pursuant to the Electronic Communications
Privacy Act of 1986.

Under a 1984 cable law, cable subscribers must be notified when law
enforcement seeks access to their video-program billing records. The law was
enacted in part to prevent embarrassing disclosure of cable bills that contain
adult-programming purchases.

The 1984 law further provides cable subscribers with the right to contest
such action by law enforcement. Cable operators that turn over records without
proper subscriber notification could face punitive damages, statutory damages
and payment of attorneys' fees.

The DOJ's proposal would not affect video-programming records. Instead, the
department is targeting cable-subscriber phone records, electronic mail and
Web-traffic logs, as well as obtaining them without tip-offs to suspects from
cable operators.

Under the ECPA, law-enforcement officers have enhanced power to obtain
customers' records. Investigators armed with court orders may gain access to
'stored information' -- typically data and phone records -- and require
companies to withhold notification for 90 days.

According to a summary of the legislation, the DOJ wants to ensure that when
it seeks data and phone records from cable operators, the delayed-notification
requirements of the ECPA trump the instant-notification requirements in the 1984
Cable Act.

'Because of perceived conflicts between the Cable Act and the laws that
govern law enforcement's access to communications and records of communications
carried by cable companies, cable providers have refused to comply with lawful
court orders, thereby slowing or ending critical investigation,' according to a
summary of the legislation.

The National Cable & Telecommunications Association is aware of the DOJ's
legislative aims, but the trade group was not prepared to comment Thursday on
the substance of the proposed legislation.

'It's a very complicated document and we are still reviewing it,' an NCTA
spokesman said.

For years, cable operators have felt that they have been caught between the
requirements of the two federal laws. Many MSOs have been reluctant to
compromise consumer privacy, especially in the face of potentially stiff legal
penalties. But the issue has taken on greater importance with cable entry into
the local phone and high-speed Internet-access markets.

In the draft legislation, the DOJ made it clear that it was not seeking to
alter protections afforded to cable-programming billing records. The legislation
specifically grants an exemption to 'records revealing customer
cable-television-viewing activity.'

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