Nathan Moreau Ms. Tegen 20/11/01 The Carnivore Invasion " They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.' -- Benjamin Franklin, 1759 The current use and regulations of the F. B. I. surveillance tool known as Carnivore need to be revised in such a way that it will no longer be able to copy the e-mails of unsuspecting Americans. Most Americans are not even aware of the existence of the Carnivore project.
The ignorance of the American people is understandable; the government has gone to great lengths to ensure secrecy when it comes to the details of the Carnivore project. The purpose of this paper is to bring to light exactly how the Federal Burro of Investigation (FBI) has invaded the privacy of a countless number of Americans. Once the severe flaws of the Carnivore system have been outlined, this paper will describe what laws need to be changed to make the Carnivore project even reasonable. The FBI designed the Carnivore system to capture email communications of a criminal suspect. The information extracted from the suspect's e-mails is then used as evidence against the suspect. In this simple explanation the Carnivore system appears to be an effective tool against crime.
Unfortunately most issues in this world cannot be explained in two sentences. The process of implementing the Carnivore system begins with a court order for a full content-wiretap (Tyson 2). Once a court order has been issued the FBI is required to request that the suspects Internet Service Provider (ISP) is willing / able to copy all of the e-mails to and from the suspects address. The initial request made by the FBI to allow the ISP to copy the suspect's e-mails is to ensure that the FBI has tried to meet the "best evidence" rule (Graham 8). The "best evidence" rule simply states that the FBI has to obtain evidence in the best way possible. If the ISP is able to copy the suspect's e-mails directly, it is considered better evidence.
If the ISP declines the FBI's request then the FBI is allowed to install the Carnivore system onto the suspect's ISP (Graham 6). Why would an ISP decline assistance? ISPs are concerned about the privacy of their customers. For example, Earthlink testified before the Carnivore Committee saying that what the FBI was asking them to do .".. violates its users' privacy" (Godoy 2).
The Carnivore system is not the first of its kind. The first similar system was codenamed Omnivore. The software used in Carnivore and in Omnivore are most likely originally commercially available packet sniffers with some minor modifications. Since the FBI claims that the program running on Carnivore is proprietary information, the FBI is not allowed to reveal the source code (the code which defines a computer program) (Graham 4). A packet sniffer is a program that allows a computer to accept and examine every packet (or piece of information) that is transmitted on a section of the network.
Once the Carnivore system is installed, the FBI is solely responsible for ensuring that the e-mails stored on each Jaz disk is not tampered with. The Department of Justice is in charge of overseeing some of Carnivore's operation but the FBI is physically responsible for the integrity of the data obtained until the court date. To even allow computer records to be used in a courtroom, the FBI has to establish three things. First, the FBI is required to capture an entire string of e-mails to ensure that the information gathered was not out of context.
Second, the data has to be proven authentic. The FBI proves the data's authenticity by documentation of how the Carnivore system was administered and by locking the system in an isolated room. Third, the FBI has to try and adhere to the "best evidence" rule, as mentioned before. The problem with all of these steps is that the FBI has control over everything that proves the data's legitimacy (Graham 6). Many laws exist to allow and regulate electronic surveillance.
One such law that regulates surveillance is the Communications Assistance for Law Enforcement Act (CALEA), which was enacted in 1994. This law basically states that telephone services (including ISPs) are required to assist law enforcement if a court order is issued. CALEA specifically says: ... expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government;" (2) When the CALEA states "to the exclusion of any other communications" does this mean that the FBI is not allowed access to any communications other than those going to and from the suspect? "A spokesman from the EFF has made the claim that Carnivore cannot sniff e-mail for only one person out of a network stream containing thousands of e-mail. Their claim is that even experts in AI (Artificial Intelligence) would not be able to build such a system." (Graham 3). The system that Graham is referring to is a blind pattern matching system, which currently cannot be built.
Therefore, the Carnivore system most likely compares every e-mail it intercepts for a certain search criteria, if an e-mail matches that search criteria the e-mail is copied. Who is in charge of regulating the Carnivore's search criteria? You might have guessed it; the FBI is in control of the source code used in the Carnivore system (Graham 1, 5). The FBI has made every effort to release as little information as possible on the Carnivore project, despite a court order. The DOJ (Department of Justice) ordered that the Carnivore system be put through an "independent review of Carnivore to test the software's capabilities" (Godoy 1). Given the controversy surrounding the Carnivore system, many of the top technical colleges including MIT, declined. The Illinois Institute of Technology (IIT) performed the "independent" review that the DOJ had requested.
After the test had been preformed, the American Civil Liberties Union realized that the reviewers at IIT might have been bias. The ACLU's concerns are understandable given the fact that one individual was a former information policy advisor to president Clinton and another was a former Justice Department official. Dr. Donald M. Kerr, Assistant Director of the FBI is quoted as saying:' We are pleased with the findings and the constructive recommendations made in today's draft report.
We are also grateful for the efforts undertaken thus far by the Illinois Institute of Technology Research Institute (I ITRI) to conduct a complete, independent, and fair review of the 'Carnivore's ystem." (1) The FBI claims that there has been a complete, independent, and fair review of the Carnivore system that supports their pervious claim that the system was perfectly legal. Even after these "fair" tests computer experts have testified to the subcommittee on the Constitution that the Carnivore still has one great flaw; the FBI has too much control over the project. In Tom Perrine testimony he claims that the Carnivore system could be used legally but that he is concerned that the technology has the power to be abused as well (3, 4). Still other law experts believe more strongly on the subject: By their very nature... electronic surveillance techniques also provide the means by which the Government can collect vast amounts of information, unrelated to any legitimate governmental interest, about large numbers of American citizens. Because electronic monitoring is surreptitious, it allows Government agents to eavesdrop on the conversations of individuals in unguarded moments, when they believe they are speaking in confidence.
Once in operation, electronic surveillance techniques record not merely conversations about criminal, treasonable, or espionage-related activities, but all conversations about the full range of human events... (Corn-Revere 8) Latter that year Tom Perrine was able to examine more information on the "draft report made by IIT and became very outspoken in an e-mail he sent to the Carnivore Review Panel. Perrine notes that the draft report not only confirms the fact that the Carnivore system can perform broad sweeps but also that it has the "inherent ability" to do so. Perrine goes on to attack the FBI's lack of accountability. Any agent that has the administrative password for the Carnivore system can change the filter specifications without any identification of which agent preformed this task. (Independent Technical Review of the Carnivore System 2, 3) The Electron Privacy Information Center (EPIC) has been the "voice of the people" through the Carnivore affairs.
The EPIC has fought for appeals (EPIC v. Department of Justice, et al. ) to get information publicly available about the Carnivore system but to no avail (Independent Technical Review of the Carnivore System 3). What information the FBI is willing to release is available on the EPIC web site. Unfortunately it is common practice of the FBI to blackout a great deal of the document's contents. Included with this report is a copy of the draft report from IIT, which the FBI has called fair and complete.
The only information that the FBI is willing to release on Carnivore project promotes the Carnivore project; therefore, the public cannot make a personal decision on whether or not the Carnivore system was fairly tested. The American people have lived under the assumption that their privacy has been ensured by law for too long. It is time to wake up from our utopian slumber and face the fact the law will only protect our rights if we fight for them. Technology has changed but unfortunately the laws that regulate our new technology are outdated. The best way to ensure the privacy of innocent Americans is to revise the current regulations governing the Carnivore system. Commonly the ISP is looking out for the privacy of their customers so it should be the ISPs' responsibility to regulate the Carnivore system.
Furthermore, the FBI should have some type of accountability when it comes to administrating the Carnivore system. The solutions for a better society are out there; we only need the courage to seize it.