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FBI should release facts on Carnivore faster to quiet critics

Shawn P. McCarthy

Privacy advocates' strong criticism of the FBI's Carnivore e-mail surveillance system has impelled the Justice Department and Congress to take a closer look.

Congress wants to make sure Carnivore won't violate any laws or make new ones necessary.

Is Carnivore as bad as people say? That remains to be seen. Documents outlining its scope are being released bit by bit, thanks to a suit filed by the Electronic Privacy Information Center (EPIC) under the Freedom of Information Act.

And there lies a problem. This is no way for the bureau to publicly handle a controversial topic.

Instead of straightforwardly explaining how Carnivore works, the FBI has been secretive and slow to respond when pushed for details. The result is unfavorable news every time someone questions the trickle of new documents.

EPIC had requested the release of all FBI records concerning Carnivore, including the source code. In August a federal judge intervened, telling the FBI to outline the scope of the material in question and set a delivery schedule.

The bureau identified several thousand pages but has released them by stages. Now it finds itself in a situation where each release prompts a new round of criticism and cries of incompleteness.

Here and gone

Had it released all the documents at once, the story would be mostly over, except for the complaining, and the public's attention would have moved on.

If the FBI had managed to put a more positive spin on the issue from the start, news stories might have taken a different slant.

For example, no one has ever claimed that e-mail is totally private anyhow. Internet service providers can read most of it. And many users have software that captures stored e-mail on corporate networks.

Also, at least in theory, federal law enforcement officials must obtain a court order for e-mail filtering just as they do for a phone wiretap. Broad-based, open monitoring is illegal.

The FBI would have been better off stating how it intends to use Carnivore and promising to use it only in specific circumstances. Without such a promise, there will always be suspicion and a trickle of negative news.

Obviously, one FBI concern is that disclosing too many details will help people figure out how to defeat Carnivore. But the issue isn't necessarily that complex.

Many people know how a phone wiretap works. That doesn't stop law enforcement from using it effectively.

What the public won't give the FBI the right to do is centrally tap any phone, anytime, for any reason, without revealing details about the scope of such conversation monitoring. It's just as unreasonable for the FBI to expect carte blanche to monitor all e-mail as it is to expect to monitor all phone calls.

On the law's side

And that's the key to the FBI argument. The bureau isn't looking for carte blanche. In fact, it needs a technology such as Carnivore to filter out what it should not see.

Opponents object to the fact that the Carnivore system is capable of storing messages locally. The agency stumbled in not being forthcoming about how and why messages are stored.

I expect that, in the end, we'll see that Carnivore is necessary and that its technology is sound. But we'll also likely learn that the FBI overstepped its bounds a bit in system implementation, and that's why it has been slow to tell all about the system design.

Carnivore isn't about Big Brother monitoring everyone. It's about watching criminals, not the general public. Privacy advocates and the FBI should remember that.

Shawn P. McCarthy designs products for a Web search engine provider. E-mail him at smccarthy@lycos-inc.com.

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