Re: ACLU letter opposing FBI Carnivore surveillance system

>From Wired News, available online at:,1294,37470,00.html

ACLU: Law Needs 'Carnivore' Fix
by Chris Oakes

3:00 a.m. Jul. 12, 2000 PDT

The American Civil Liberties Union, on Tuesday, urged Congress to
amend outdated electronic privacy laws following news of an FBI system
capable of large-scale email interception and analysis.

"There's no clear law that authorizes Carnivore," said ACLU associate
director Barry Steinhardt. "But the FBI and the Justice Department ...
will argue that there's no clear law that prohibits it. And Congress
needs to put some real limits on what law enforcement can do."

Steinhardt and other ACLU members sent a letter Tuesday evening to
Representative Charles T. Canady (R-Florida), chair of the
Constitution Subcommittee of the House Judiciary Committee.

The ACLU urged Canady's committee to prohibit Carnivore-type systems
-- or "dragnets," as Steinhardt called them -- that give law
enforcement officials access to large quantities of communications.

"It is a system for intercepting huge volumes of email and it's a
system that was never contemplated by Congress when it passed the
Electronic Communications Privacy Act" of 1986, Steinhardt said.

The Wall Street Journal reported details of Carnivore on Tuesday. The
FBI surveillance system, which the agency showed to members of the ISP
industry two weeks ago, works like a kind of Internet wiretap that
tracks emails and other electronic communications. Agents use it only
after obtaining a court order that allows them to intercept the
communications of a criminal suspect.

The FBI would install the specialized computer on the networks of
Internet providers, where it "sniffs" out all mail and records sent to
or from the target of an investigation.

A spokeswoman at Canady's Washington office said the congressman could
not respond until he had reviewed the ACLU letter.

The 14-year-old Electronic Communications Privacy Act allows for
real-time interception of messages if there is a court order, similar
to those used for tapping a suspect's telephone line. Federal law also
allows law enforcement officials to obtain court orders for a "tap and
trace." This provision allows the FBI and other law enforcement
agencies to obtain a list of telephone numbers used by a suspect.

It is the transposition of these laws to the modern Net age that the
ACLU says leaves agencies like the FBI with too much leeway in its use
of 21st century digital technologies.

For example a tap-and-trace order might let the FBI demand, from a
website, the IP addresses of all Web users who accessed a particular
page, Steinhardt said. "Are they required to turn that over? That's
far more than who dialed what phone numbers."

Steinhardt said email searches must be more clearly restricted.

"We can't be in the position of making a leap of faith that law
enforcement will have access to all this information but only look at
this very narrow band of communications that they're entitled to," he

But an FBI spokesman said the notion that it would look at more emails
than the agency is entitled to under the law is a misunderstanding of
the system's purpose and operation.
"It limits the messages viewable by human eyes to those which are
strictly included in the court order," he said. "Unless Jill Smith's
communications are flagged, we don't see Sally's, Jane's, or anyone
else's, we just see Jill Smith's."

The concept that Carnivore searches through millions of emails per
second is misleading, the spokesman said on Tuesday. Reading from a
prepared statement, he said the system was "designed to be installed
at the premises of a typical ISP, which provides its customers with a
dial up service to the Internet." Because the volume of email flowing
through such connections is small and runs at slow speeds, the numbers
are not in the millions of emails per second, he said.

But the ACLU still isn't prepared to trust the FBI with access to such
an ongoing stream of email messages.

"We have too much history of law enforcement abuse to believe that
when they are well beyond anybody's scrutiny -- including in this case
the scrutiny of the ISPs -- that they will adhere to the letter, let
alone to the spirit, of the law," Steinhardt said.

Countering that point, the FBI spokesman said that even if the agency
were to overlook restrictions prohibiting such wide-scale review of
email, the task would be formidable.

"We haven't the time nor the inclination to randomly (search all
messages passing through the system)," the spokesman said. "'Hey, this
looks interesting,' 'Oh let's look at that,' 'Oh, look at that one' --
I mean, come on -- give me a break."

In any case, he said, the FBI's use of the system is subject to
intense oversight by internal agency controls, the Department of
Justice, and by the court that issued the order. Penalties for misuse
include the exclusion of illegally obtained evidence in a trial, as
well as criminal and civil penalties.

But privacy advocates sided with the ACLU on Tuesday and believe that
Carnivore cannot be reliably operated under current law.

"Disclosures of this capability raise significant privacy issues, and
call into question the adequacy of existing federal wiretap laws,"
said David Sobel, general counsel of the Electronic Privacy
Information Center. "As technology advances, the laws become more

Sobel said it's imperative that Congress look at current law
enforcement investigative technologies and bring the applicable laws
into compliance with "current realities."

"None of the ISPs in WAISP has ever contacted me with questions about
it, and as long as the FBI showed up with a valid warrant, ISPs would
comply," said Gary Gardener, executive director of the Washington
Association of Internet Service Providers (WAISP).

"It does raise disturbing questions about the info collected that is
not subject to the investigation at hand, but as long as the rules of
evidence are adhered to, and the court issues the proper warrant,
(then) we'll have to wait for Congress to resolve the issue."

The ACLU's Steinhardt doesn't expect immediate attention by Congress,
but does believe that Congress will eventually act.

"I do think over the long term that there's some reason to hope that
the Congress will in fact appreciate the need to amend existing law to
cover these new situations -- and that if we don't, we're going to
allow the technology to swallow up the Fourth Amendment and to render
it meaningless," he said.

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