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December 21, 2003
By ADAM LIPTAK The New York Times
PEOPLE with sophisticated safety and communications systems in their cars may be getting an unwanted feature. An appeals court decision last month revealed that the government may be able to convert some of the systems into roaming in-car wiretaps.
The decision, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, arose from a criminal investigation in Nevada. An unidentified company challenged a series of court orders requiring it to create a roving bug for the Federal Bureau of Investigation. The appeals court overturned the orders, but its reasoning suggested that the issue will recur.
The technology involved, used by OnStar, ATX and others, combines a global positioning satellite transmitter with a cellular telephone. Drivers can use the services to seek information and emergency help.
Most of the court file in the Nevada case is sealed, and the appellate decision did not discuss the nature of the investigation or specify the brand of the system in question. But the court's description of the system's features is consistent with one offered by ATX, which provides telematics services for cars from BMW, Ford, Jaguar and Mercedes-Benz, among others.
The device discussed in the decision allows drivers to punch one of three buttons: for emergencies, general information and roadside assistance. The phone has a speaker and microphone, and it turns out that the microphone may be activated surreptitiously, allowing government agents to listen in on conversations in the car.
Geri Lama, a spokeswoman for OnStar, said that her company was not involved in the case and that OnStar's setup was not capable of what she called "stealth listening."
"Any time we call into the vehicle, it rings," she said, adding that if a car is stolen, OnStar can retrieve data about its location but cannot eavesdrop on the people inside.
OnStar, a General Motors subsidiary, is the leading provider of telematics services, not only for G.M. vehicles but also models from Acura, Audi, Isuzu, Lexus, Subaru and Volkswagen.
Neither Bennee B. Jones, the Dallas lawyer who represented the company in the case, nor Gary A. Wallace, an ATX spokesman, responded to telephone and e-mail messages seeking comment. ATX is based in Irving, Tex., near Dallas. Natalie Collins, a spokeswoman for the United States attorney in Las Vegas, declined to comment.
The appeals court decision, rendered after the wiretapping had concluded, ruled that the lower-court judge should not have allowed it. But the appellate ruling was narrow, based on the fact that safety features of the system in question had to be disabled to permit the government to listen in.
The majority had no objection in principle to converting the device into a bug; a dissenter would have allowed the eavesdropping even at the expense of safety. The government indicated that it would ask either the three-judge panel or a larger panel of the appeals court to reconsider the decision that disallowed the Nevada wiretap.
Privacy advocates on both sides of the political spectrum said the decision raised troubling questions about in-car communications devices. "If the facts were just a little bit different, law enforcement would have won this case," said Chris Hoofnagle of the Electronic Information Privacy Center, a civil liberties group.
Bob Barr, a former congressman from Georgia and a former federal prosecutor, agreed. "People ought to boycott such systems," he said.
In the Nevada investigation, the company had to disable two of the three buttons - for general information and for roadside help - to allow the eavesdropping.
The third button, for emergencies, continued to work, in a way. But pressing the button would not have contacted the company. Instead, the device would have emitted a tone over an open line monitored solely by federal agents, assuming they were listening at the time.
"The F.B.I., however well intentioned, is not in the business of providing emergency road services," Judge Marsha S. Berzon wrote for the majority. In dissent, Judge Richard C. Tallman said the government should have been allowed to use "an important investigative tool."
Mr. Hoofnagle said that other courts might rule differently and that the companies providing such services might face financial and political pressure to alter their technology to allow eavesdropping. "It's more likely than not that manufacturers of these devices will build in a back-door facility for wiretapping," Mr. Hoofnagle said. He added that it was cheaper to comply with court orders than to challenge them.
Mr. Barr said market pressure from consumers who are not eager to facilitate wiretapping would not be enough. "I hate to say this as a conservative," he said, "but the only way we can guard against misuse is through federal legislation."
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