by Mark C. Eades

The Drudge Report's revelation Thursday of a story possibly developing at the New York Times regarding alleged misdealings by John McCain with a telecom lobbyist opens a host of questions on precisely what McCain's relationship with the telecom lobby might entail, particulary given the paper's own stony silence on the matter. According to Drudge, the McCain campaign "has been waging a ferocious behind the scenes battle with the New York Times" to get the story killed, and "has hired Washington attorney Bob Bennett to defend McCain against charges of special treatment to a lobbyist" (see also Washington Post). Drudge writes further that the story involves a "high-impact report involving key telecom legislation before the Senate Commerce Committee," citing "newsroom insiders" and suggesting that the story was leaked out of frustration at "McCain's aggressive and angry efforts to stop any and all publication." Also involved in the story according to Drudge is a certain "woman lobbyist who may have helped to write key telecom legislation," and who "has retained counsel and strongly denies receiving any special treatment from McCain." McCain responded to the story Thursday by denying all charges of granting special favors to lobbyists, but admitted that his staff had been in contact with the New York Times regarding the story (see AP). While McCain denied having any personal contact with the paper, Politico has confirmed that McCain himself had indeed spoken with executive editor Bill Keller on concerns regarding the story.

Recent reports on McCain's relationship to telecom lobbying focus on his noted opposition to "net neutrality" efforts aimed at preventing broadband companies using their ownership of internet "pipes" to discriminate between content providers based on profitability. At present, the internet is a "neutral" playing field with free and equal access to all, and any censorship or "gatekeeping" by carriers strictly prohibited. On grounds of "free competition," however, McCain has supported the efforts of broadband carriers such as Comcast, AT&T, and Verizon at gaining congressional permission to control access to websites on a two-tiered basis consisting of a fee-based "fast track" for more profitable websites and a "slow track" for sites whose owners can't afford the fee. In effect, carriers would be permitted to replace our current open internet with a fee-based caste system, and even to block access to competitors' websites. As e-Week and The Daily Background note, John McCain has a history of support for telecoms in these efforts, as the senator himself has expressed: "When you control the pipe you should be able to get profit from your investment." Broadband Reports also notes McCain's history of opposition to net neutrality, including his introduction of the "Consumer Broadband Deregulation Act of 2002," a deregulation measure aimed at preventing the government from requiring broadband providers to offer access to competing ISP's in the residential broadband market. In 2005 McCain co-introduced the "Broadband Investment and Consumer Choice Act," which as Democracy Now! observes would eliminate the requirement that telecom companies pay franchise fees to local municipalities, eliminating also the only source of funding for public access programming. From McCain's home state of Arizona, Tucson Weekly notes that in 2006 McCain cast the deciding vote against the Snowe/Dorgan proposal to preserve internet freedom, noting also that McCain took in $44,250 in contributions that year from big telecom.

More currently, Wonkette suggests a possible link between the Drudge story and McCain's introduction of a telecom bill (S.744) linked to lucrative lobbying efforts earlier this year. Described as a public-private partnership to build a national broadband network for public safety, the bill would in fact place said public safety network in private hands, causing concern among public safety groups (see MRT). As Wonkette observes, two companies that stand to benefit from the bill, Cyren Call Communications (also here) and FrontLine Wireless, have hired several lobbying firms to advocate for it according to lobbying records linked here. In fact, the company favored in McCain's authorship of the bill is Cyren Call Communications, headed by Nextel founder Morgan O'Brien, which according to Open Secrets spent more than $1.2 million on lobbying between 2006 and 2007. By process of elimination Wonkette names several possible candidates from these firms for the mysterious "woman lobbyist" mentioned by Drudge: Lisa Kountoupes formerly of Clark & Weinstock, now of Kountoupes Consulting; Julie Hershey Carr of Kountoupes; Kathleen M. (Kathy) Ramsey of Fritts Consulting; and Mary Tripp and Anne Wexler of Wexler & Walker. Of the firms and lobbyists named by Wonkette here, Fritts Consulting has been most closely associated with Cyren Call by authors such as Jeffrey Birnbaum in the Washington Post, Fritts CEO Edward O. (Eddie) Fritts the former CEO of the National Association of Broadcasters (NAB), chief lobbyist Kathy Ramsey the former Executive Vice President of Public Affairs for NAB. Of the woman lobbyists named by Wonkette, port and the specific background in broadcast lobbying one would expect of a candidate for the mystery "woman lobbyist" named by Drudge. According to contribution reports publically available online, Lisa Kountoupes and Anne Wexler are both Democrats, with no significant links either to John McCain or to the telecom industry. Though Republicans, neither Julie Hershey Carr nor Mary Tripp have significant links either to John McCain or to the telecom industry. Only Kathy Ramsey has all the ingredients: A strong record of support for Republican PACs, including PACs that have contributed to John McCain campaigns, and the background in lobbying for broadcasting concerns as Executive Vice President of Public Affairs for NAB necessary to "write key telecom legislation" such as that to which Drudge refers above and Wonkette elaborates here. NAB has long lobbied for carriers' ownership and profitability rights over the public good and the principle of net neutrality. Beyond her work with NAB, Ramsey has also contributed to such Republican PAC's as the New Republican Majority Fund, which in turn like NAB has been a McCain contributor. If it is, therefore, from among the candidates listed by Wonkette above that we must choose Most Likely to be John McCain's Mysterious "Woman Lobbyist," my vote goes to Kathy Ramsey.

Meanwhile, as Wonkette also observes, the Association of Public-Safety Communications Officials, the International Association of Chiefs of Police, and the International Association of Fire Chiefs "oppose McCain’s bill because it (surprise) would allow some companies (or a company) to profit off of the spectrum before the public (and public safety organizations) would be able to utilize it for the greater good." Jeffrey Birnbaum writes likewise on concerns over public safety interests versus those of private profit in the Cyren Call-McCain bill, noting that some "see it as a money grab using first responders as a front." Among Cyren Call's opponents, Birnbaum notes, is former Federal Trade Commission and White House budget office policy aide Jeffrey A. Eisenach, who describes it as "a get-rich-quick scheme to the tune of billions of dollars." Other opponents cited by Birnbaum include CTIA-The Wireless Association, the Consumer Electronics Association, and Representative Fred Upton (R-Mich.), former chairman of the House's telecommunications subcommittee. Even the conservative Heritage Foundation has spoken out against the plan on grounds that its potential cost to the public may well outweigh its benefits. The bill is currently in referral with the Senate Commerce, Science, and Transportation Committee, on which McCain sits, as identified by Drudge above. In addition to those named above, Cyren Call's paid advocates on Capitol Hill included Tom Blank, former Acting Deputy Administrator of the Transportation Safety Administration. Other Cyren Call supporters include former Homeland Security secretary Tom Ridge - whose recent private-sector work with Ridge Global and Savi Technology has made him a major player in the lucrative security technology market - recently seen with McCain on the campaign trail. Big telecom must have high hopes for a McCain presidency.

Though figures may differ according to breakdown, data provided by Open Secrets shows campaign contributions to John McCain from the telecom industry totalling in the hundreds of thousands of dollars since 1998. Large individual contributors to McCain include AOL/Time-Warner, AT&T, Comcast, Verizon, and Viacom. For example, shows PAC contributions of $65,200 from Verizon, $63,604 from Viacom, $44,825 from Time-Warner, and $15,750 from Comcast. McCain has consistently backed the ownership and profit interests of big telecom over the public good and the free exchange of information. Whether or not McCain turns out to be guilty of any crime, he certainly appears guilty of the same corrupt beholdedness to K Street as any of Washington's worst.

YOU ARE BEING TRACKED All Done With Court Approval  Without "Probable Cause"

by Ellen Nakashima
Washington Post Staff Writer

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department's internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government's request, so it is difficult to know how often the orders are issued or denied.

The issue is taking on greater relevance as wireless carriers are racing to offer sleek services that allow cellphone users to know with the touch of a button where their friends or families are. The companies are hoping to recoup investments they have made to meet a federal mandate to provide enhanced 911 (E911) location tracking. Sprint Nextel, for instance, boasts that its "loopt" service even sends an alert when a friend is near, "putting an end to missed connections in the mall, at the movies or around town."

With Verizon's Chaperone service, parents can set up a "geofence" around, say, a few city blocks and receive an automatic text message if their child, holding the cellphone, travels outside that area.

"Most people don't realize it, but they're carrying a tracking device in their pocket," said Kevin Bankston of the privacy advocacy group Electronic Frontier Foundation. "Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air."

In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker's phone location by using the carrier's E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone's Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent's affidavit failed to focus on "specifics necessary to establish probable cause, such as relevant dates, names and places."

Owsley decided to publish his opinion, which explained that the agent failed to provide "sufficient specific information to support the assertion" that the phone was being used in "criminal" activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had " 'identified' or 'determined' certain matters," Owsley wrote, but "these identifications, determinations or revelations are not facts, but simply conclusions by the agency."

Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.

[Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.]

In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing "specific and articulable facts" showing reasonable grounds to believe the data are "relevant to an ongoing criminal investigation," said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.

Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is "consistent with the probable cause standard" of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.

"Law enforcement routinely now requests carriers to continuously 'ping' wireless devices of suspects to locate them when a call is not being made . . . so law enforcement can triangulate the precise location of a device and [seek] the location of all associates communicating with a target," wrote Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA -- the Wireless Association, in a July comment to the Federal Communications Commission. He said the "lack of a consistent legal standard for tracking a user's location has made it difficult for carriers to comply" with law enforcement agencies' demands.

Gidari, who also represents CTIA, said he has never seen such a request that was based on probable cause.

Justice Department spokesman Dean Boyd said field attorneys should follow the department's policy. "We strongly recommend that prosecutors in the field obtain a warrant based on probable cause" to get location data "in a private area not accessible to the public," he said. "When we become aware of situations where this has not occurred, we contact the field office and discuss the matter."

The phone data can home in on a target to within about 30 feet, experts said.

Federal agents used exact real-time data in October 2006 to track a serial killer in Florida who was linked to at least six murders in four states, including that of a University of Virginia graduate student, whose body was found along the Blue Ridge Parkway. The killer died in a police shooting in Florida as he was attempting to flee.

"Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. None whatsoever," Boyd said. "What we're doing is going through the courts to lawfully obtain data that will help us locate criminal targets, sometimes in cases where lives are literally hanging in the balance, such as a child abduction or serial murderer on the loose."

In many cases, orders are being issued for cell-tower site data, which are less precise than the data derived from E911 signals. While the E911 technology could possibly tell officers what building a suspect was in, cell-tower site data give an area that could range from about three to 300 square miles.

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected," said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said. Shortly after Smith issued his decision, a magistrate judge in the same district approved a federal request for cell-tower data without requiring probable cause. And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

These judges are issuing orders based on the lower standard, requiring a showing of "specific and articulable facts" showing reasonable grounds to believe the data will be "relevant and material" to a criminal investigation.

Boyd said the government believes this standard is sufficient for cell-site data. "This type of location information, which even in the best case only narrows a suspect's location to an area of several city blocks, is routinely generated, used and retained by wireless carriers in the normal course of business," he said.

The trend's secrecy is troubling, privacy advocates said. No government body tracks the number of cellphone location orders sought or obtained. Congressional oversight in this area is lacking, they said. And precise location data will be easier to get if the Federal Communication Commission adopts a Justice Department proposal to make the most detailed GPS data available automatically.

Often, Gidari said, federal agents tell a carrier they need real-time tracking data in an emergency but fail to follow up with the required court approval. Justice Department officials said to the best of their knowledge, agents are obtaining court approval unless the carriersprovide the data voluntarily.

To guard against abuse, Congress should require comprehensive reporting to the court and to Congress about how and how often the emergency authority is used, said John Morris, senior counsel for the Center for Democracy and Technology.

Staff researcher Richard Drezen contributed to this report.