By: Jon Adler, National President, Federal Law Enforcement Officers Association
On July 9, 2012, Congressman Edward Markey, D-Mass., issued a press release alleging that law enforcement officers were abusing their authority and compromising the rights of innocent consumers by making excessive requests for cell phone data. He derived this information from data he said he received from nine mobile wireless carriers. Failing to recognize the reality that criminals are increasing their use of wireless forms of communication, Rep. Markey declared that in 2011, “federal, state and local law enforcement agencies made more than 1.3 million requests of wireless carriers for the cell phone records of consumers, and the number is increasing every year.”
Without context, this comes across as an alarming statistic. Unfortunately, Rep. Markey neglected to mention that from 2010 to 2011, wireless communication transmissions increased by 123 percent (CTIA – The Wireless Association, April 2012). Instead, he seeks to exploit an isolated statistic to suggest that law enforcement is engaging in an uncontrolled cell data fishing expedition. With the economic downturn reducing law enforcement staffing levels, does Rep. Markey really think we have the time or desire to recklessly request voluminous records irrespective of any specific investigative purpose?
Nonetheless, Rep. Markey attempts to validate his position by stating in his release, “We cannot allow privacy protections to be swept aside with the sweeping nature of these information requests, especially for innocent consumers. Law enforcement agencies are looking for a needle, but what are they doing with the haystack.” Based on what Rep. Markey stated, are we to infer that if a criminal pays their cell phone bill on time, they are an “innocent consumer?” Furthermore, suspected criminals should not be trivialized as “needles” in a misapplied analogy.
Federal law enforcement is not trampling on static straws of “hay,” but we are instead functioning in a fast moving, dynamic environment. Law enforcement officers endure great risk and sacrifice pursuing terrorists, drug traffickers, fugitives and violent gang members, while upholding the sacred due process of law. According to retired Police Chief John Shanks, the Director of Law Enforcement Relations for the National Law Enforcement Officer Memorial Fund (NLEOMF), a staggering number of law enforcement officers were fatally wounded by violent criminals in 2011. Chief Shanks stated, “We need to ensure that our officers have all the information they need to better protect themselves while engaging in enforcement operations. Impeding their access to information is like reducing the rounds in their magazine.”
Since Rep. Markey first asserted that law enforcement was violating the rights of innocent consumers, we recommended that he query the various Internal Affairs and Inspector General components to ascertain the number of substantiated cases of abuse. Unfortunately, Rep. Markey opted not to pursue this reasonable recommendation, but instead was content to rely exclusively on the isolated data that the carriers provided. Had he made the good faith effort to contact the various internal affairs and inspector general agencies, he would have learned that there is no epidemic of law enforcement abuse.
Rep. Markey issued another press release on Aug. 9, 2012, announcing the draft of his new legislation, The Wireless Surveillance Act of 2012. In the draft, he mischaracterizes legitimate law enforcement efforts to obtain cell phone records as a “startling number of requests.” Rep. Markey fails to understand criminals “startling” exploitation of electronic forms of communication to accomplish their often violent objectives. Additionally, his legislative proposal fails to recognize the rampant increase in identity theft and the harmful impact this crime has on “innocent consumers.” Identity thieves rely on their access to wireless communications to accomplish their goals, and their mobility continues to pose a significant challenge to law enforcement. While Rep. Markey claims that his legislation would bring greater accountability, in effect it would only serve as trip wire to disrupt law enforcement efforts to pursue criminals and their accomplices.
As an attempt to validate his legislative proposal, Rep. Markey included comments from American Civil Liberties Union (ACLU) Legislative Counsel Christopher Calabrese to support his position. According to Mr. Calabrese, “We need to ensure that law enforcement no longer has carte blanche to track innocent Americans.”
Contrary to Mr. Calabrese’s assertion, we don’t “track” innocent Americans; we investigate suspected criminals while upholding and defending the sanctity of the law. Were we to fail in this regard, Office of Professional Responsibility and Inspector General components would investigate any allegations of abuse of authority. Rep. Markey raced to a dubious conclusion while failing to seek the input of those qualified to properly assess any alleged misconduct.
On May 17, 2012, FLEOA Vice President John Ramsey testified at a congressional hearing in opposition to H.R. 2168, the Geolocational Privacy and Surveillance Act. He represented federal law enforcement officers by opposing the implementation of further restrictions on law enforcement’s ability to obtain wireless information. In his testimony, he posed an important question followed by poignant commentary: “Do we really want to slow down the apprehension of murderers and rapists so they can build their trophy wall by increasing the amount of legal documents necessary for law enforcement to gather information? Law enforcement should not be further hindered during their investigation of time-sensitive cases that involve the threat of serious bodily harm or death by imposing additional legal hurdles that may very well jeopardize the lives of countless innocent Americans.”
With the advent of email, Twitter, Voice-Over-Internet Protocol, Facebook, instant messaging and other wireless mediums, criminals are not playing charades to carry out their objectives. Recognizing the value of wireless communication, numerous criminals have dropped their guns and picked up PDA’s in their place. As the number of wireless communication options grows, so will the number of criminals seeking to exploit them. If Rep. Markey takes pause to consider this, he may come to realize that his legislative proposal may benefit criminals more than it protects innocent Americans.