OMG! Cops Asking Carriers for Your Text Messages

Suppose every telephone call you made was recorded by someone and was kept by your carrier for a couple of years, and when law enforcement said they wanted a copy of that recording, they could get it. You’d be outraged. Fortunately, that’s not on the agenda, at least not yet. But a proposal that’s almost as scary is now before Congress, having been pushed there by an array of police chiefs from big cities around the country.

Under the proposal (first noted by CNET’s Declan McCullagh) wireless providers would be required to record and store information about text messages for at least two years. It’s not completely clear if the cops would like the carriers to keep the text of the messages or “just” the header information identifying the sender and receiver.

In any case, this is a very bad idea; Big Brotherism gone wild. Police are already grabbing information captured by cell towers to track the whereabouts of people under investigation  — often without a warrant. And as we learned during the sex-and-email scandal that brought down CIA Director David Petraeus, once authorities start probing personal communications, there are no boundaries.

Indeed, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations. And many of those requests are granted by the carriers without a warrant, particularly if the police deem it an emergency.

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.” AT&T alone receives an average of more than 700 requests a day, nearly a third of them for “emergencies,” and thus in a position to be granted without a warrant, according to a Congressional report released earlier this year. It’s not clear how many requests are actually granted by the carriers.

The proposal to retain text messages is part of an effort to rewrite the Electronic Communications Privacy Act now cooking in Congress. It was sent there by the Major Cities Chiefs Police Association, which represents the 63 largest U.S. police forces including New York City, Los Angeles, Miami, and Chicago, and also supported by the National District Attorneys’ Association, the National Sheriffs’ Association, and the Association of State Criminal Investigative Agencies, a spokesman for the police chiefs said.

It’s somewhat ironic that the news of this potentially outrageous invasion of privacy comes this week, the 20th birthday of the text message. In twenty years, what started as a curiosity has become an essential part of our digital lives; Forrester Research says that more than 2 trillion (yes, trillion with a “t”) text messages were sent in the U.S. last year.

Clearly, the cops aren’t going to read all of those, but the potential for widespread abuse is dead obvious. Once the messages are retained, how long will it be before divorce lawyers, employers, and insurance companies are trolling through them, looking for dirt and incriminating evidence.

Since text message are, by their nature short, there’s no context to explain something that might be utterly innocent but appears incriminating.

And remember, someone has to pay for this: “It’s likely that the costs for this will be passed on to you. That means that you’d foot the bill for something that might do you a great deal of harm,” says Rebecca Jeschke of the Electronic Frontier Foundation.

You know the drill: Send an email or call the office of your Senators and tell them to kill this thing.