A House committee last Wednesday took the first step toward forcing the cable industry to provide federal law enforcement agencies with customer telephone and Internet-access records that could reveal criminal activity.
In response to the Sept. 11 terrorist attacks, the Bush Administration is pressing Congress to pass new laws that would ease the Justice Department's ability to infiltrate terrorist cells that use the Internet or traditional phone services to plan their acts.
In a move supported by the cable industry, the House Energy and Commerce Committee adopted an amendment to anti-terrorism legislation that would set up a new legal regime which allows law enforcement agencies to seize data and phone records retained by cable operators under court order.
The amendment, adopted unanimously by voice vote, was part of a much broader piece of national security legislation that is also being reviewed by the House Judiciary Committee. Senate approval is also necessary before the measure reaches President Bush's desk.
Under the amendment, cable operators would be required to provide Internet and phone records when law enforcement agencies seek them pursuant to a lawful court order. Cable operators would not be required to inform the affected subscriber of the government's intentions.
However, the amendment would not change current federal cable law, which requires the cable operator to notify a subscriber when law enforcement seeks data in connection with the subscriber's video programming selections.
The overarching purpose of the amendment was to clarify the cable operator's obligations under the Electronic Communications Privacy Act and the 1984 Cable Act. The clarification establishes that cable operators that turn over phone and data records under ECPA can't be sued by subscribers under provisions of the Cable Act designed to protect the privacy of video billing records.
"The bill ensures that law enforcement officials have the same ability to gain access to cable subscriber Internet and telephony information as they do with conventional telephone service," said Rep. Billy Tauzin (R-La.), chairman of the Energy and Commerce Committee.
The Justice Department voiced concern that if cable operators were required to alert a subscriber when the government seeks phone and data records, the subscriber who is the focus of the probe could take steps to cover up his or her illegal activities.
"The way the cable act provisions work today, they would lend to the potential destruction of evidence by the subject of the investigation and that impedes law enforcement," said National Cable & Telecommunications Association president Robert Sachs.
The Justice Department was also concerned that cable operators have sought to protect themselves from lawsuits under cable law by resisting ECPA requests in court.
Sachs said he sent letters two weeks ago to Attorney General John Ashcroft and congressional leaders to articulate the cable industry's support for legislation to clarify cable operators' obligations under the two statutes.
"We are very supportive of the efforts of law enforcement and the Justice Department to close that anomaly in the law," Sachs said.
Center for Digital Democracy president Jeff Chester accused the cable industry of cooperating with Ashcroft and Congress to further the industry's goal of weakening privacy protections of their customers for commercial purposes.
"I think that's irresponsible," Sachs said. "That has nothing to do with making information available for commercial purposes. It shows a total lack of understanding of the law."