Both federal and local level law enforcement officials have purchased cell phone records and other private information from Internet-based data collection services as an investigative short-cut, MSNBC.com has learned. At least one Web-based data seller has told Congress that the FBI is a client.
Critics of the practice say it encourages alleged illegal behavior by Web site operators, who often obtain the information by tricking telephone company customer service representatives into revealing it.
A hearing on the sale of cell phone records is scheduled for this week before the Oversight and Investigations Subcommittee of the House Energy and Commerce Committee.
The phone records are generally acquired by the resellers through fraudulent means and would not be admissible in court as evidence, but they are still helpful as an investigative tool, say officials familiar with the investigation.
The alleged use of the customer records by law enforcement officials could raise legal and ethical questions, as it would circumvent due process and years of established laws protecting consumers from random eavesdropping on electronic communications.
The U.S. House Energy and Commerce Committee and its Oversight and Investigations Subcommittee are looking into the fraudulent acquisition of consumer cell phone records by private investigators and online data sellers — an issue that exploded into the public sphere earlier this year after a blogger was able to purchase cell phone records of former presidential candidate Gen. Wesley Clark. But the business was thriving online long for years before that, with hundreds of Web sites advertising that they could obtain anyone's cell phone records for about $100.
The committee is attempting to learn who's selling the cell phone records, and who's buying.
FBI says it looks to private firms for help
As part of its inquiry, the committee has asked dozens of Web sellers to reveal their customers lists. MSNBC.com has viewed one such list, and spoken with several other data sellers.
One seller, Advanced Research Inc., which operates ADVSearch.com, told the committee that it has sold data to the FBI.
"On occasion, ARI (Advanced Research) has done work for municipalities, banks, mortgage and insurance companies, private companies, foreign governments, law enforcement, even the FBI," ARI's letter to Congress said.
FBI spokesman Richard J. Kolko said Sunday he could not confirm or deny whether the bureau had received mobile phone records from Advanced Research, but acknowledged that the FBI sometimes buys or receives data from private companies to help with investigations. But he said agents would never break any laws to obtain such evidence.
"The FBI, in pursuit of its investigative priorities, at times gets information from private companies that provide information to the public, or at least to others outside of the government," Kolko said. "This investigative technique is used to support investigations or other aspects of our missions. When this is done, we adhere to all established DOJ guidelines, FBI policy and the law."
Kolko also said he could not comment on processes the FBI may have in place to ensure that data it receives from private companies has been acquired legally by intermediaries.
Congress is now investigating how Web phone records sellers obtain their data; officials at state and federal agencies have said acquisition of customer mobile phone records without their consent is a criminal act.
Many buyers involved in debt collection
The dozens of Web sites now being investigated by Congress sell to a wide cross-section of customers buying data. Evidence gathered so far suggests many purchasers are involved in debt collection. But a steady stream of evidence also implicates law enforcement officials, who occasionally use the services as a shortcut, avoiding the need for court orders generally required to see phone records.
The phone records are often obtained by private investigators through a tactic known as "pretexting." Investigators call mobile-phone companies posing as legitimate customers and trick service representatives into delivering copies of records.
Many Web site sellers maintain the practice is legal, but cell phone companies, the Federal Communications Commissions and numerous state attorneys general have said impersonation of consumers is fraud. Several states also have sued data brokers over the acquisition and sale of phone records in recent months.
Just this week, the House of Representatives overwhelmingly passed a bill making acquisition of cell records through pretexting explicitly illegal. Those who obtain such records could face up to 20 years jail time under the bill that passed by a vote of 409-0 on Tuesday.
In its response to an inquiry by congressional investigators, Texas-based PDJ Investigations — which runs several look-up sites — stated that it provide records to law enforcement officers.
"On numerous occasions a wide variety of law enforcement officials on a federal, state and local level have asked for investigative assistance, which PDJ has provided free of charge," the company wrote.
The lawyer for another firm that's being questioned by Congress — IEI Investigations, also known as BestPeopleSearch.com — said he believed his client also has provided services to law enforcement for free and said the practice is common in the industry.
"It's a much easier and cheaper path to gather information," said the company's Los Angeles-based lawyer, Larry Slade. "But when law enforcement uses it, it raises other issues."
Civil liberties attorneys say the use of illegally obtained cell phone records as part of a criminal investigation raises serious questions.
‘Established legal procedures’ circumvented
“There are established legal procedures for obtaining phone records that provide checks against improper access,” said Chris Hoofnagle, an attorney at the Electronic Privacy Information Center who complained to the Federal Communications Commission and the Federal Trade Commission last year about the availability of cell phone records online. “These legal procedures allow fast access to phone record for law enforcement and provide accountability. That’s what missing here, the accountability.”
A publicly elected official caught up in the congressional inquiry also has said publicly that he obtained phone records for law enforcement officials. Colorado state Rep. Jim Welker, owner of Universal Communications Co., told the Rocky Mountain News earlier this month that he sold phone records to law enforcement officials, as well as debt collectors and financial companies.
"I look at it (the business) as helping the good guys find the bad people," he told the paper. Welker -- an enigmatic figure in Colorado politics who recently said at a press conference that legalizing gay marriage would eventually lead to inter-species marriage -- did not return phone calls from MSNBC.com seeking comment.
One potential customer of MPIS Inc.'s PublicPeopleFinder.com service was the Ruston, La., Police Department. In January, Ruston Police Chief Randal Hermes told MSNBC.com that he sent an e-mail to MPIS asking about the Web site’s ability to locate cell phone calling records.
"We are finding the need more and more often to search cellular telephone records," the letter said. "It's unbelievable to me how difficult it is in this day and time to identify the subscriber of a cell phone."
In reply, MPIS's Jodi Leatherman wrote, "We're always looking to help law enforcement," Hermes said.
When asked about the e-mail exchange, Hermes said his department was investigating a string of cell phone thefts, and had "run into some pretty rough road blocks" trying to get records from cell phone companies. Up-to-the minute calling records are the best way to find a thief after a cell phone is stolen, but the records can be hard to get, he said.
‘You want the records quickly’
"If your phone is stolen and you want the records quickly, it's impossible to do," he said. "We were looking on the Internet to see if there were other places we could go that had cell phone records."
Hermes said he never obtained any records from PublicPeopleFinder.com, however. Soon after the Jan. 25 exchange with Leatherman, Hermes found a helpful employee at a cell phone company and the department was able to obtain the records through standard procedures, so he no longer needed the Internet-based services, Hermes said. “It didn’t go any further,” he said.
One company under investigation replied to the Congressional inquiry letter with what appears to be a a partial customer list, which was viewed by MSNBC.com. The spreadsheet, titled "Copy of Call Record Customers," revealed that most cell phone record buyers were small companies, most likely hoping to perform debt collection. The list included several apartment complexes, doctor's offices and law offices.
Also on the list is an employee of a major insurance provider who works in the company's "special investigations unit."
The list also includes a Washington D.C.-area resident who says on his Web site that he's a consultant for law enforcement officials in the D.C. area, and an expert in CALEA — the Communications Assistance for Law Enforcement Act. Federal officials and police officers often utilize CALEA statutes to legally obtain consumer telephone record information.
The Washington D.C.-area resident did not return requests for comment. It is not clear that he ordered cell phone records on behalf of law enforcement officials.
The use of extreme means by debt collectors is hardly new; one professional pretext caller interviewed by MSNBC.com, who spoke under condition of anonymity, said that use of cell phone records to track debtors is an important cog in the lending system. Without it, lenders would have no hope of collecting from customers who default on loans — and would have to stop lending money to consumers with lower credit scores.
The anonymous pretext caller said he occasionally did free work for law enforcement. In one case, the source said, he helped a police detective in Nassau County, N.Y., who wanted to prove an association between two alleged criminal accomplices. The suspects denied knowing each other, but their cell phone records showed otherwise.
"He knew it wasn't admissible, but he used it to shake them down (during interrogation)," the source said.
Witness: 'Not being fully investigated'
Rob Douglas, an information security consultant who operates PrivacyToday.com, performed research for the House committee conducting the investigation. He recently quit because he said significant issues “were not being fully investigated.”
In a letter announcing his resignation, Douglas said the committee needs to look into dramatic allegations that officials from the Homeland Security Department are among the law enforcement officials purchasing the cell phone records.
"There have been allegations made by one party in the investigation that the Department of Homeland Security purchased American's phone records from a company in Texas," Douglas wrote. "It is not clear that this lead is being fully and aggressively explored."
Russ Knocke, a spokesman for the Department of Homeland Security, said his agency would not use cell phone records Web sites to obtain information.
"There are privacy laws in this country,” he said. “We had the NSA (eavesdropping) debate already.”
The use of the records can cut both ways for law enforcement. On two occasions reviewed by MSNBC.com, a data broker traced a cell phone number for an Internet buyer and revealed that it belonged to a law enforcement official. The records suggest those consumers could also have been able to obtain call records for a police officer's cell phone — exactly the nightmare scenario the Chicago police department warned its members about in a January memo.
Douglas said some commercial data brokers, in an effort to boost their argument that obtaining cell phone records is legal, have in the past exaggerated claims of working with law enforcement officials. Still, the sheer amount of evidence pointing to the use of illegally obtained phone records by law enforcement official warrants deeper investigation, he said, adding that the current witness list for an upcoming Congressional hearing on the matter does not include law enforcement officials or other government officials accused of purchasing the records.
“The constitutional issues raised by government agents looking at Americans' phone records absent judicial oversight are serious,” he said. “Equally important is the protection of those very same agents from criminals buying their records in an attempt to do harm to the agents or their investigations. Congress must fully explore these issues and not short-cut the current investigation."
A hearing on the committee’s findings is tentatively scheduled for May, Douglas said. A spokesman for the committee said in an e-mail statement that it would not comment on the committee's work until it is finished.
"The committee is conducting an extensive investigation into potential breaches of basic privacy. Until that inquiry is complete and we're satisfied about the reliability, authenticity and significance of the raw data coming in now in response to requests and subpoenas, we will defer trying to characterize it," wrote Larry Neal, deputy staff director for the House Energy and Commerce Committee. He also wrote that there may be as many as a "half-dozen" investigative hearings, and that the committee has not yet decided whom to call.
The Federal Trade Commission is separately conducting its own investigation of cell phone record online sales, as are several state attorneys general.
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