Many law enforcement agencies across the country are now petitioning Congress to force wireless providers such as AT&T, Verizon, and Sprint to record and store cell phone texts for up to two years in case they might need to access that information for future investigations. In fact, these same law enforcement agencies are the ones claiming that their investigations could be hindered if legislation is not put in place to create these regulations.

The Major Cities Chiefs Police Association (MCCPA) are the ones who have asked Congress to add the provision to an electronic privacy bill, which is awaiting a vote, expected sometime early next year.

CNet's Declan McCullagh reported,

CNET has learned a constellation of law enforcement groups has asked the U.S. Senate to require that wireless companies retain that information, warning that the lack of a current federal requirement "can hinder law enforcement investigations."

They want an SMS retention requirement to be "considered" during congressional discussions over updating a 1986 privacy law for the cloud computing era -- a move that could complicate debate over the measure and erode support for it among civil libertarians.

As the popularity of text messages has exploded in recent years, so has their use in criminal investigations and civil lawsuits. They have been introduced as evidence in armed robbery, cocaine distribution, and wire fraud prosecutions. In one 2009 case in Michigan, wireless provider SkyTel turned over the contents of 626,638 SMS messages, a figure described by a federal judge as "staggering."

RT writes, "In recent weeks, the antiquated Electronic Communications Privacy Act of 1986 (ECPA) has been in the news due to congressional efforts to update the legislation to reflect the growing nature of the Internet. Last week, the Senate Judiciary Committee approved an amendment to the act that, if passed by Congress, will require law enforcement agencies to obtain a search warrant to collect personal emails older than 180 days. Currently, only an easy-to-obtain administrative court order is needed to access private emails, meaning any archived correspondence contained on the digital cloud can be collected by the police without producing any probable cause to a judge. Should the MCCPA have their way, however, efforts to make it harder for law enforcement to eavesdrop on emails would be cancelled out by the widespread collection of text messages."

The American Civil Liberties Union legislative counsel Christopher Calabrese said that the ACLU “would oppose any mandatory data retention mandate as part of ECPA reform," claiming the MCCPA’s ideas are "a different kettle of fish – it doesn't belong in this discussion.”

According to privacy expert Hanni Fakhoury, "These data retention policies serve one purpose: to require companies to keep databases on their customers so law enforcement can fish for evidence.”

An attorney with the Electronic Frontier Foundation says that should the Congress grant the request of the MCCPA and it pass into legislation, "this would seem to be done against the wishes of the providers, presumably, since…some of the providers don't keep SMS messages at all."

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