AT&T, Verizon Wireless, Sprint, and other wireless providers would be required to record and store information about Americans’ private text messages for at least two years, according to a proposal that police have submitted to the U.S. Congress.
CNET has learned a constellation of law enforcement groups has asked the U.S. Senate to require that wireless companies retain that information, warning that the lack of a current federal requirement “can hinder law enforcement investigations.”
They want an SMS retention requirement to be “considered” during congressional discussions over updating a 1986 privacy law for the cloud computing era — a move that could complicate debate over the measure and erode support for it among civil libertarians.
As the popularity of text messages has exploded in recent years, so has their use in criminal investigations and civil lawsuits. They have been introduced as evidence in armed robbery, cocaine distribution, and wire fraud prosecutions. In one 2009 case in Michigan, wireless provider SkyTel turned over the contents of 626,638 SMS messages, a figure described by a federal judge as “staggering.”
Chuck DeWitt, a spokesman for the Major Cities Chiefs Police Association, which represents the 63 largest U.S. police forces including New York City, Los Angeles, Miami, and Chicago, said “all such records should be retained for two years.” Some providers, like Verizon, retain the contents of SMS messages for a brief period of time, while others like T-Mobile do not store them at all.
Along with the police association, other law enforcement groups making the request to the Senate include the National District Attorneys’ Association, the National Sheriffs’ Association, and the Association of State Criminal Investigative Agencies, DeWitt said.
“This issue is not addressed in the current proposal before the committee and yet it will become even more important in the future,” the groups warn.
That’s a reference to the Senate Judiciary committee, which approved sweeping amendments to the Electronic Communications Privacy Act last week. Unlike earlier drafts, the latest one veers in a very privacy-protective direction by requiring police to obtain a warrant to read the contents of e-mail messages; the SMS push by law enforcement appears to be a way to make sure it includes one of their priorities too.
It wasn’t immediately clear whether the law enforcement proposal is to store the contents of SMS messages, or only the metadata such as the sender and receiver phone numbers associated with the messages. Either way, it’s a heap of data: Forrester Research reports that more than 2 trillion SMS messages were sent in the U.S. last year, over 6 billion SMS messages a day.
The current policies of wireless providers have been highlighted in some recent cases. During a criminal prosecution of a man for suspected murder of a 6-year old boy, for example, police in Cranston, R.I., tried to obtain copies of a customer’s text messages from T-Mobile and Verizon. Superior Court Judge Judith Savage said that, although she was “not unfamiliar with cell phones and text messaging,” she “was stunned” to learn that providers had such different policies.
While the SMS retention proposal opens a new front in Capitol Hill politicking over surveillance, the principle of mandatory data retention is hardly new. The Justice Department has publicly called for new laws requiring Internet service providers to record data about their customers, and a House of Representatives panel approved such a requirement last summer.
“We would oppose any mandatory data retention mandate as part of ECPA reform,” says Christopher Calabrese, legislative counsel for the American Civil Liberties Union. That proposal is “a different kettle of fish — it doesn’t belong in this discussion,” he says.
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