ACLU Investigating 'Carnivore's' Diet

SAN FRANCISCO (07/17/2000) - The American Civil Liberties Union has filed a Freedom of Information Act request with the U.S. Federal Bureau of Investigation, asking for information about the agency's "Carnivore" surveillance system, which is designed to monitor traffic on an Internet service provider's network.

According to Barry Steinhardt, associate director of the ACLU, the request is believed to be the first that asks for the source code, or the set of instructions for a program that are compiled into object code, which computers understand. The ACLU requests that all agency records related to the FBI's electronic surveillance programs, including Carnivore, Omnivore and Etherpeek.

Those records may include letters, e-mail messages, tape recordings, technical manuals, computer-source code and object code.

"Carnivore is a black box through which all the electronic communication flows in an ISP network. The ISP knows what is going in, but we don't know what the FBI is taking out of it," Steinhardt says. "The FBI is saying, 'Trust us, we're not violating anybody's privacy,' but we have a long history of government abuse of surveillance powers that teaches us we can't simply trust them."

The FBI has 20 business days to respond to the FOIA request, which was filed Friday. A call to the FBI was not returned.

On Wednesday, House Majority Leader Dick Armey of Texas issued a statement calling on U.S. Attorney General Janet Reno and FBI Director Louis Freeh to "stop using this cybersnooping system until Fourth Amendment concerns are adequately addressed."

Reno said during her weekly press briefing on Thursday that she would launch an investigation into the privacy implications of Carnivore, which she said she learned of through newspaper reports on Wednesday. She also said that although she knew the FBI had surveillance capabilities like those used by Carnivore, she did not know of the application or that it was already in use.

"I'm taking a look at it now, to make sure that we balance the rights of all Americans with the technology of today," Reno said. "But whatever the case, this cannot be done without appropriate court order, according to processes and procedures used now for lawful surveillance.

"And I just want to make sure that industry, privacy interest, law-enforcement interests are all fully advised so that we can consider anybody's concerns and make sure that we address them."

The controversies surrounding FBI surveillance in the information age will be addressed at a House Judiciary Subcommittee on the Constitution hearing on July 24. The ACLU has been asked to testify.

As reported by the Wall Street Journal on Friday, went to court to challenge Carnivore's legality after the ISP was asked by the FBI to allow agents to install the surveillance system on its network. EarthLink argued that the court order that the FBI followed did not meet the standards necessary for the type of information the system would obtain. A court magistrate sided with the FBI and upheld the order, but EarthLink technically is prevented from installing Carnivore because it doesn't work with the ISP's current operating system software and crashes servers when used with an older version of the system software, according to company spokesman Kurt Rahn.

"When we were approached to put something on our system that monitored our members' usage, that's a big concern to us," Rahn says. "We don't know what it does or doesn't do. This is something from the top of the organization to the bottom of the organization that we've been against for some while."

The FBI had used a "pen register" court order, typically used to record telephone numbers dialed from a particular phone. The FBI justified this by saying that it wanted to be able to see e-mail headers. But because of the way Internet packet technology has been developed, those headers cannot be viewed separately from other parts of messages.

David Sobel, counsel for the Electronic Privacy Information Center in Washington, D.C., says that is equivalent to eavesdropping, for which agencies are required to show probable cause under the Fourth Amendment's search-warrant standard. Pen register and trap-and-trace orders are easier to get than full-blown search-warrant court orders, he added, and apparently the FBI had no probably cause.

"Part of the problem here is that they're basically grabbing everything, when all they're authorized to get is the header information," Sobel says. "The other part of the problem is that apparently this system potentially compromises the privacy of all of an ISP's subscribers."

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