Subject: [NEXTEL-1] FBI Disables OnStar To Conduct Surveillance On Owner.

From: [email-masked]
Date: Wed, 19 Nov 2003 13:45:15 -0500

FBI Disables OnStar To Conduct Surveillance On Owner.
Wednesday, November 19, 2003

Ninth Circuit Places Limits on Use of GPS Systems in Vehicles for Government
Surveillance Purposes

By KENNETH OFGANG, Staff Writer/Appellate Courts

The operator of an on-board communication system in a motor vehicle may be
compelled to
assist law enforcement in monitoring conversations within the vehicle, but only
within certain
limitations, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel said a federal judge erred in allowing the FBI to disable the
on-board
communications system in an automobile in order to facilitate surveillance of
the owner.
The targets and subject matter of the investigation, conducted the Justice
Department’s Las Vegas
Organized Crime Strike Force, were not identified.

On-board systems combine cellular telephone and global positioning satellite
technology to put
subscribers in touch with company staffers at a command center. As Judge Marsha
Berzon explained
it for the Ninth Circuit, such systems “assist drivers in activities from the
mundane—such as
navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant—to
the more
vital—such as responding to emergencies or obtaining roadside assistance.”

The feature at issue in yesterday’s ruling, the judge went on to say, allows the
operator to open a
cellular connection to a vehicle and listen to oral communications within the
car. When activated at
the owner’s request, this feature enables the operator to communicate with
emergency personnel, or
to overhear the thieves if the car has been stolen.

But the same technology permits eavesdropping, the judge noted, and has thus
caught the interest
of the FBI, leading to yesterday’s review of a series of orders by U.S. District
Judge Lloyd D. George
of the District of Nevada. George approved a series of four 30-day “roving”
wiretap orders requiring
the system operator to assist in the investigation by permitting the FBI to
monitor conversations
within the vehicle.

The Ninth Circuit declined to identify the system operator, referring
cryptically to “The
Company”  throughout the opinion. But its explanation of the system describes
the technology placed
in about two dozen models of luxury cars by General Motors, and operated by GM’s
OnStar Corp.
subsidiary.

“The Company,” after complying with George’s first ex parte order, challenged
the remaining
orders as an unlawful infringement upon its business. After George declined to
quash his second
order, the company complied with that and the subsequent orders, but challenged
them on appeal.
Berzon noted that the last order has long-since expired—the case was argued in
the Ninth Circuit
in December of last year—but said the case would not be dismissed as moot
because similar orders
are likely to be issued in the future.

The Ninth Circuit panel held that operators of on-board systems come under the
wiretap
provisions of Title III of the Omnibus Crime Control and Safe Streets Act of
1968, as amended.
The act permits “duly authorized law enforcement officers” to engage in
electronic surveillance
and to obtain court orders requiring the assistance of a “provider of wire or
electronic
communication service, landlord, custodian, or other person...to accomplish the
interception
unobtrusively and with a minimum of interference with the services” being
provided to the target of
the surveillance.

Berzon agreed with the district judge that the operator of an on-board system is
a “provider” of a
communications service, and is the type of entity whose assistance Congress
intended to require. But
the orders granted by George went too far, Berzon wrote, because they permit
more than “a minimum
amount of interference” with the company’s service.

The appellate jurist explained:
“In this case, FBI surveillance completely disabled the monitored car’s System.
The only function
that worked in some form was the emergency button or automatic emergency
response signal. These
emergency features, however, were

severely hampered by the surveillance: Pressing the emergency button and
activation of the car’s
airbags, instead of automatically contacting the Company, would simply emit a
tone over the already
open phone line. No one at the Company was likely to be monitoring the call at
such a time, as the
call was transferred to the FBI once received.”

Since the FBI is prohibited by Title III from listening in on conversations
unrelated to its
investigation, Berzon elaborated, an emergency call would likely have gone
unheeded. Besides, she
wrote, “the FBI, however well-intentioned, is not in the business of providing
emergency road
services, and might well have better things to do when listening in than respond
with such services to
the electronic signal sent over the line.”

Berzon explained in a footnote that even if it is possible for the operator to
design a system in
such a way that surveillance may be conducted without disabling other services,
there is nothing in the
Omnibus act that requires it to do so.

Senior Judge John T. Noonan concurred in the opinion, but Judge Richard Tallman
dissented.
The majority, Tallman argued, erred in defining “minimum amount of interference”
by creating “an
absolute threshold instead of a relative standard.” Since there was no actual
interference with
services, and no showing that any lesser intrusion by the government could have
met the legitimate
needs of law enforcement, George’s orders should have been upheld.

http://www.metnews.com/articles/comp111903.htm

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