Judge issues ruling on FBI filtering app

Judge issues ruling on FBI filtering app

He refuses, however, to bar Justice or the bureau from using Carnivore

By Shruti Dat'

GCN Staff

A District Court judge ruled last week that the Justice Department has 10 days to tell the court when it will begin processing a public-interest group's Freedom of Information Act request about the FBI's e-mail filtering system.

Judge James Robertson of the U.S. District Court for the District of Columbia, however, denied the Electronic Privacy Information Center's request that the court bar the FBI from using the Carnivore system. The Washington privacy advocacy group sought a re- straining order.

But the center argued'persuasively, the judge noted'that the government must assure public review of a system that has sparked an outcry about potential privacy abuses.

The ruling came just days after twenty-eight members of Congress, in a July 27 letter to Attorney General Janet Reno, asked the FBI to stop using Carnivore.

'Consumer confidence in the privacy and security of the Internet are essential for continued growth of electronic commerce. People should feel secure that the federal government is not reading their e-mail, no matter how worthy the objective,' the letter said.

If the FBI can satisfy Congress that the system will not violate anyone's privacy rights, then the lawmakers said they would consider approving its further use. The way the bureau uses Carnivore to monitor specified e-mail exchanges, as approved under court orders, is similar to how it uses a wiretap to eavesdrop on telephone conversations.

Members of the House Judiciary Subcommittee on the Constitution last month grilled FBI and Justice Department officials about the system. The hearing addressed concerns over whether the tool violates Fourth Amendment privacy protections.

'We need innovative, new law enforcement strategies to combat the real and growing threat of cybercrime,' Rep. J.C. Watts (R-Okla.) said. But 'the FBI's record on protecting privacy is problematic. From unwarranted wiretaps to its mishandling of hundreds of files on political appointees just a few years ago, there is ample cause for concern.'

Restricted use

FBI officials told lawmakers that safeguards are in place. To gain a court order to use Carnivore, agents must demonstrate probable cause, identify the telecommunications facility from which e-mail will be intercepted, give a description of the information to be intercepted and name the people suspected of committing a crime. Once agents obtain a court order, they work with an Internet service provider to install Carnivore at the provider's site. Carnivore can be configured to intercept specific e-mail messages when installed on a provider's network.

The application, which runs under Microsoft Windows NT, requires a 400-MHz or faster Pentium PC as a host. To further protect against privacy abuses, the bureau has trained fewer than a half-dozen agents how to install the app, FBI officials said.

Filtering cannot go on indefinitely. Court orders generally are limited to 30 days; after that, the equipment is removed.

Under the Electronic Communications Privacy Act and the Title III Amendment to the Omnibus Crime Control and Safe Streets Act, the FBI can request to collect e-mail containing specified words.

Donald M. Kerr, director of the FBI Lab Division, said Carnivore captures only the minimum amount of information necessary. E-mail messages not covered by the order are discarded, he said. The program cannot decode encrypted e-mail.

'We don't capture information we don't need,' Kerr said.

This year, the FBI has used Carnivore in six criminal cases and 10 national security investigations. Since the bureau began developing it three years ago, Carnivore has been used 25 times.

'The proper balance is key. Carnivore is a tool that helps us achieve that balance,' said Kevin V. DiGregory, deputy associate attorney general.

Technology and privacy experts, however, said the scope of the application is more invasive than the FBI has acknowledged.

'Carnivore is not a minimization tool, but a maximization tool,' said Barry Steinhardt, associate director of the American Civil Liberties Union. 'Congress never authorized the FBI to access unlimited communications.'

Isolation factor

FBI officials have said they developed Carnivore because Internet service providers could not isolate specific communications.

Peter William Sachs, president of Iconn LLC, a New Haven, Conn., Internet service provider, said his technical staff could easily set up a system to intercept e-mail that would require no more than two lines of code.

Providers have another concern, Sachs said: the security of their networks against attack. If Carnivore were installed on Iconn's network, it would give hackers a new point of entry and it would slow down service, he said.

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