During the past two weeks, ISPLA has been visiting members of Congress in Washington, DC regarding several anti-spoofing bills, which have already passed in either the Senate or House, and researching a surreptitious surveillance video bill recently introduced in the Senate.
ANTI-SPOOFING LEGISLATION – As previously reported, we conferred offices of each sponsor of anti-spoofing bills:
S.30, the “Truth in Caller ID Act of 2009” – Sen. Bill Nelson (D-FL), HR 1258, the “Truth in Caller ID Act of 2010” – Rep. Eliot Engel (D-NY-17) and HR 1110, the “Outbound Number Enforcement Act of 2009” or the “PHONE Act” – Rep. Robert C. “Bobby” Scott (D-VA-3).
We also met with counsel to the Senate Commerce Committee, staff from Senator Nelson’s office, and with the lobbyist representing providers of such spoofing services, technology and “spoof cards” to our profession. ISPLA outlined our position as how best to allow legitimate investigations to continue to utilize this investigative tool. We offered our suggested intent language along with an additional exception for lawful investigations, outlining the role of private sector investigations versus those conducted in the public sector.
Opponents to the current exception language in HR 1258 presented a 6-page paper on why the intent to deceive standard violates the First Amendment. In the briefing held with the committee’s counsel it was pointed out that the House Report on HR 1258 confuses the verb “deceive” with the old tort of “deceit”, and that “deceive” and “deceit” are not the same. It was argued that even if the staff report is correct and “fraud and deceit require the intent to cause harm to the person to whom misleading information is being conveyed, HR 1258 creates a liability based only on an “intent to…deceive,” not based on the tort of “deceit.”
In contrast to HR 1258, it appears that S. 30 is constitutional but some clarification is necessary, according to other stakeholders concerned with aspects of anti-spoofing legislation. The definition of “person” should make certain that it applies only to the person making the call and not the service provider. The phrase “cause harm” should be modified to refer only to “physical or economic harm, or other demonstrable damage.” Opponents of the present language in all of these bills maintain:
Congress could not constitutionally enact a blanket prohibition on lying in face-to-face situations, or in print, or verbally in a telephone conversation. It has no more power to enact a statute prohibiting a phone caller from lying about his identity through a manipulation of a string of numbers sent between telephones and computers, or creating civil liability for a service provider to provide the technology that enables such lies.
ISPLA was asked to be available to appear at an informal meeting to be held in the near future between the Senate and House sponsors and assist them in drafting suitable “intent” exception language to permit investigative and security professionals continued use of technical tools and techniques with which to conduct legitimate investigations.
PROHIBITION ON USE OF VIDEO SURVEILLANCE – Equally important is our representation of this profession regarding a bill about which we previously alerted the profession at the time of its introduction less that two weeks ago, S. 3214, the “Surreptitious Video Surveillance Act” introduced by Senator Arlen Specter (D-PA). Senators Russ Feingold (D-W) and Ted Kaufman (D-DE) are cosponsors.
S 3214, if enacted, would amend Title III of the Omnibus Crime and Control Act of 1968 as amended by the Electronic Communications Privacy Act of 1986, otherwise known as the Wiretap Act, and treat certain video surveillance as electronic surveillance under wire communications with prohibitions where a subject would have reasonable expectation of privacy.
This bill arose from an incident involving the Lower Merion School District’s provision of laptop computers use by students at Harrington High School in Pennsylvania. The computers were activated remotely by school officials who disclosed images of a student in his home, thought to be using drugs at the time. Civil litigation ensued, along with extensive media coverage. A motion filed in federal court disclosed that the school system had secretly captured “thousands of images of webcam pictures and screen shots” as well as creating a record of the websites visited and excerpts of their online chats, according to the McClatchy Newspapers. That was followed by a U.S. Senate Judiciary subcommittee hearing on March 29 and the introduction of S 3214 by Senator Specter on April 15. We have reviewed testimony of all witnesses at that hearing. This is another example where ISPLA has become involved with proposed legislative initiatives during the early stages of legislation being introduced. We have alerted stakeholders in allied professional associations, corporate investigators, and are working closely with their lobbyists in addressing this important legislative issue. An ISPLA member already met with Senator Specter on this bill this past weekend and a meeting has been arranged to discuss further an exception for private investigators with his chief counsel. We will also be working with colleagues to ensure that the final bill does not restrict use of video surveillance in areas where there is no expectation of privacy for security purposes, crime prevention, or crime detection.
ISPLA hopes that the recipients of this message will join and support ISPLA in its legislative efforts to make certain that any possible unintended consequences of this legislation are not extended to present legitimate use of video surveillance of subjects by investigators or in the use of fixed visual monitoring for security purposes. Federal legislation was previously passed which addresses part of the problems Senator Specter seeks to solve. In 2004, the “Video Voyeurism Prevention Act was enacted. As one of the witnesses testifying at the recent hearing indicated, that statute prohibits certain privacy intrusions without prohibiting legitimate use of silent video surveillance as a security measure.
To keep abreast of these bills and other legislative issues impacting the investigative and security professions visit www.ispla.org
ISPLA also operates the first ever federal Political Action Committee (PAC) specifically representing the Investigative and Security professions. If you would like to contribute to the non-partisan ISPLA-PAC you may send your donations by “personal” check to the following address:
ISPLA
235 N. Pine Street
Lansing, Michigan 48933
Questions or comments regarding this report may be directed to:
Bruce Hulme
ISPLA Director of Government Affairs
Tel: (212) 962 4054
Email: brucehulme@yahoo.com