This article originally appeared on Opposing Views.
There’s a scene in the seminal police procedural show “The Wire” when Baltimore’s detectives get schooled on burners.
Detective Kima Greggs, played by the excellent Sonja Sohn, is sitting in her unmarked car with Bubbles, a heroin addict who’s also Kima’s confidential informant. Bubbles produces a cell phone from his pocket, presses the call button, holds the phone up to his ear, then frowns and tosses the phone out of the car window.
“You too?” Kima asks. “What the [expletive] is up with these phones? I’ve been seeing kids throw them away all day. You’ve got cash like that to waste?”
Bubbles shakes his head and licks his lips.
“They’re laying all over, man,” he tells Kima. “Sometimes you get lucky and find minutes on them. Burners, Kima.”
In the show, the detectives realize the notorious Barksdale drug gang is using burners — cheap, disposable cell phones loaded with prepaid minutes — to avoid wiretaps and make it more difficult for police to track them.
That was 2004. Sixteen years later, a California congresswoman is treating burners like cutting-edge tech, and claiming they’re used almost exclusively by criminals, to push a bill that would require customers to present ID when purchasing burners.
The bill, dubbed the Closing the Pre-Paid Mobile Device Security Gap Act of 2016 by its sponsor, Democratic State Rep. Jackie Speier of San Francisco, would deputize retailers by forcing them to collect identifying information about the buyer “and share that information with the cellular provider for that individual device.”
Speier claims it’s a necessary step to prevent terrorists, crime lords and human traffickers from duping investigators.
Speier’s proposed legislation is unconstitutional and invasive.
First, let’s get the obvious truth out of the way: Americans have good, legitimate reasons for using burners. Some people use them because they don’t require contracts. For others, especially the nation’s poor, burners are one of the few ways people can get their own cell phones without credit checks.
Others use them to protect their own privacy. That’s their right. There’s nothing in the constitution — and no legal precedent in the history of judicial decisions — that says a technology should be regulated, or privacy violated, simply because its existence is inconvenient for law enforcement.
As The New York Times’ Jim Dwyer noted in a 2012 column, burners are also used by whistleblowers and media sources who wish to remain anonymous.
“There are reporters in New York who carry a half-dozen prepaid cellphones, loaded with minutes purchased in cash,” Dwyer wrote. “The numbers are not registered to a real person, nor do they have to be under current law. They are peace of mind for confidential sources who have something to say but don’t want to make calls to a phone associated with a reporter or a news organization.”
Secondly, it’s disingenuous to say that police and the feds can’t track or tap burners. They’ve been doing it for years. The National Security Agency has software that analyzes network traffic, call times and contacts to track people who switch between burners, according to documents obtained by the Electronic Frontier Foundation.
A little detective legwork can easily reveal the owner of a burner, as security blog B3RN3D points out — all the police have to do is pull security camera footage from retailers. It’s also easy for law enforcement to triangulate the location of a burner device by using information from cell phone towers, as well as law enforcement “honeypots” that masquerade as legitimate cell phone towers, but exist for the purpose of collecting network information.
“If you think the government is after you, there’s really not much a burner phone is going to help you with,” B3RN3D notes.
Speier’s proposed legislation isn’t the first time a politician has tried to make it easier for law enforcement to track burners. Similar legislation has been proposed — and shot down — several times over the years.
But like any good politician, Speier knows that it’s easier to slip legislation through when the public and fellow lawmakers are emotional. To that end, she’s invoked the March 22 terrorist attacks in Belgium, as well as the earlier Paris attacks and even 9/11, to bolster her argument for approving the bill.
Passing legislation on emotion is like grocery shopping while hungry. It’s not a good idea, and leads to often regrettable decisions. But with privacy in the balance, the stakes are higher. Let’s hope Speier’s fellow lawmakers recognize the legislation for the bad idea it is, and reject this attempt at further infringing on privacy.