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House Panel Passes Privacy Change

A House committee Wednesday took the first step toward forcing the cable
industry to provide federal law-enforcement agencies with customer phone and
data records that could reveal criminal activity.

Reacting to the terrorist attacks of Sept. 11, the Bush administration is
pressing Congress to pass new laws that would ease the Department of Justice's
ability to infiltrate terrorist cells that use the Internet and traditional
phone service 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 that allows law enforcement to seize under court order data and
phone records retained by cable operators.

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 can
advance to the White House for enactment.

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
subscribers of the government's intentions.

However, the amendment would not change current federal cable law that
requires cable operators to notify subscribers when law enforcement seeks data
in connection with their video-programming selections.

The overarching purpose of the amendment was to clarify cable operators'
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 the ECPA can't be sued by subscribers under privacy
protections for video-billing records under the Cable Act.

'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 DOJ voiced concern that if cable operators were required to alert
subscribers when the government seeks phone and data records, subscribers who
are the focus of probes could take steps to cover up their 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,' National Cable & Telecommunications Association
president Robert Sachs said.

The DOJ 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 the
legislation clarifying cable's 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,' he added.

Jeff Chester, president of the Center for Digital Democracy, 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 for commercial purposes. It shows a total lack of
understanding of the law.'