Washington— In an effort to infiltrate terrorist cells, the Justice Department is seeking legislation that would require cable operators to surrender subscribers' phone and data records without notifying those customers for 90 days, according to a draft of the bill.
With the nation on high alert after the devastating Sept. 11 terrorist attacks, Attorney General John Ashcroft is urging Congress to give federal law-enforcement officials new authority to track the data and phone traffic of suspected terrorists who are cable-system customers, among other things.
According to informed sources, the Justice Department 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 (ECPA).
Under a 1984 cable law, subscribers must be notified when law enforcement seeks access to their video-program billing records. The law was enacted, in part, to prevent the embarrassing disclosure of cable bills that contain adult-programming purchases.
The 1984 law further provides cable subscribers with the right to contest such law-enforcement action. Cable operators that turn over records without proper subscriber notification could face punitive and statuatory damages, and may be forced to pay attorneys' fees.
The Justice Department's proposal would not affect video programming records. Instead, it's targeting cable-subscriber phone records, electronic-mail messages and Web traffic logs, and the ability to obtain them from cable operators without tipping off potential suspects.
Under the ECPA, law-enforcement officers have enhanced power to obtain customer records. Investigators armed with court orders may gain access to "stored information" — typically data and phone records — and can require companies to withhold notification for 90 days.
According to a summary of the legislation, the Justice Department wants to ensure that when it seeks data and phone records from cable operators, the delayed notification requirements of 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 investigations," according to a summary of the legislation.
The National Cable & Telecommunications Association is aware of DOJ's legislative aims but on Thursday the trade group was not prepared to comment on the substance of the proposals.
"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 MSO 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 Justice Department made it clear that it was not seeking to alter protections afforded cable programming billing records. The legislation specifically grants an exemption to " records revealing customer cable television viewing activity."