Senators propose law banning pre-paid cell phones

In a move ostensibly intended to aid anti-terrorism efforts, Senators Charles Schumer and John Cornyn issued a joint press release two weeks ago announcing proposed legislation that would essentially end the anonymity of pre-paid cell phones by requiring buyers to present identification when purchasing one, and phone companies to maintain a record of buyers’ information. This is merely the latest strong reaction to the context surrounding the Times Square bomber, who used a “disposable” cell phone to, among other things, to call Pakistan prior to the bombing attempt and to arrange to buy the vehicle that he used to plant the explosives in his failed attempt to set off a car bomb in New York City. The proposed senate legislation would be the first federal attempt to require registration of pre-paid cell phone purchasers, although several states are already considering such rules. Schumer and Cronyn acknowledge that the vast majority of pre-paid cell phone users for law-abiding purposes, the fact that they are popular among criminals is sufficient reason in their opinion to prohibit anonymous use. This is an interesting line of thinking, as it’s not at all clear how even a criminal’s use of a cell phone would itself be an illegal act, and it seems a stretch to try to put a cell phone in the category of a weapon like a handgun, explosives, or other products already subject to buyer identification and purchase record-keeping requirements. Public reaction to the proposal, from all political perspectives, pretty unanimously points out the obvious infringement on civil liberties and individual privacy (which commentators such as Bob Barr attribute as a defining characteristic of the 111th Congress).

This proposed action is consistent with a long history of precedents where the government seeks information on a large body of individuals and their transactions or communications in the name of law enforcement (and, in this case, national security). Efforts by the U.S. government to restrict the strength of encryption used in exported products were generally ruled unconstitutional in 1997, but remain in place for exports of some product types to some countries, under a program administered by the Bureau of Industry and Security (BIS), part of the Department of Commerce. Encryption — and more specifically its use to protect the privacy of data and communications — is perhaps the most prevalent contemporary example of a technology that can be used just as effectively to hide criminal behavior as it can to protect legitimate users. Governments in many countries, not just the U.S., have struggled to find the right balance point between individual and national interests, but in the post 9/11 era, both the former and current U.S. administrations seem quite willing to restrict the civil liberties of the many to try to avoid missing the threatening actions or intentions of a few. We touched on this sort of bias in the aftermath of another terrorist near-miss last Christmas; the desire to avoid a successful terrorist attack is certainly strong enough to warrant proposals like the one from Schumer and Cronyn, and may just be strong enough to override personal privacy considerations in the name of homeland security.