Vol 7 No 1 - Roger Williams University School of Law

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and the legal limits of government surveillance.13 Many computerexperts believe that the scope of the study was too narrow, andthat serious technical questions remain about the ability ofCarnivore to satisfy Constitutional and statutory thresholds foronline security and safety.14 This note explores some importantlegal issues raised by the operation of Carnivore, including a briefdiscussion of the adequacy and conclusiveness of the IITRIanalysis as it pertains to each issue.Part I of this comment provides a basic assessment of theoperational aspects of the Carnivore system. Part II explores thefundamental legality of the Carnivore device from aConstitutional perspective. Part III examines Carnivore’s likelycompliance with current federal statutory wiretap laws as theyhave been interpreted and applied by the judiciary. Finally, theconclusion offers comments and proposals for how to strike abalance between privacy interests and government objectives.I. OPERATIONAL OVERVIEW OF CARNIVOREAs an initial matter, to understand the legal implications ofutilizing a surveillance system like Carnivore, one mustunderstand its basic operational capabilities. Although a fullydetailed description of how Carnivore works has not been madeavailable to the public, the general premise of the system is asfollows:Carnivore is a Windows NT based software program thatoperates upon connection to a network access point provided by aparticipating Internet Service Provider (ISP).15 To install thedevice, the FBI must present a valid court order to interceptelectronic communications of a target suspect.16 The court ordermay authorize capture of an entire communication, or it can belimited to addressing or routing information.17The FBI and the ISP install Carnivore at a point on the ISP’s13. John Schwartz, Computer Security Experts Question Internet Wiretaps, N. Y.Times, Dec. 5, 2000, at A16.14. See id.15. See The Carnivore Controversy: Hearings on Electronic Surveillance andPrivacy in the Digital Age Before the Senate Comm on the Judiciary, 106th Cong. (2000)[hereinafter Hearings 1] (statement of Sen. Patrick Leahy).16. See Big Sister – Janet Reno; An Orwellian Carnivore, Cincinnati Enquirer,Sept. 13, 2000, at A10.17. See Hearings 1, supra note 15 (statement of Sen. Patrick Leahy).
network where data from a suspect named in the court order islocated.18 As a technical matter, the FBI has conceded that theISP cannot provide an access point that can limit the Internettraffic flowing through the Carnivore device to only that of thenamed suspect.19 Because the Internet operates by breakingelectronic transmissions down into “packets” of data that arereassembled at a destination point, Carnivore must necessarilyseparate or filter the target suspect’s electronic transmissionsfrom other Internet traffic as it flows through the device.20Once the named suspect’s data is separated from other traffic,Carnivore routes the information to a second filter.21 As the datatravels through the second filter, the system makes a copy of all ofthe information and sends the original data to its desireddestination.22 On the basis of authorized search parameters,Carnivore segregates relevant and irrelevant data.23 Copied datathat is not relevant to the FBI investigation is purged.24 Trafficthat is relevant to the investigation and defined under the courtorder is sent to an archive system for permanent storage at anFBI facility.25With these functional characteristics in mind, thefundamental legality of the Carnivore device can be examinedfrom both a constitutional and federal statutory perspective.Because this comment focuses only on the inherent legitimacy ofthe system, assuming proper use, these analyses will be madeignoring any possibilities for misuse of the system on the part ofthe FBI.18. See id.19. See James X. Dempsey, Does Carnivore Go Too Far?, Network World, Oct. 30,2000, at 73; see also Dan Eggen & David A. Vise, More Questions Surface about FBISoftware; Wiretap Program Can Archive All Internet Communications, Nov. 18, 2000,at AO3.20. See Hearings 1, supra note 15.21. Id.22. See The Carnivore Controversy: Hearings on Electronic Surveillance andPrivacy in the Digital Age Before the Senate Comm. on the Judiciary, 106th Cong.(2000) [hereinafter Hearings 2] (statement of Donald Kerr, Asst. Director, FederalBureau of Investigation).23. Id.24. Id.25. See Hearings 1, supra note 15.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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