Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
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.
- Page 210 and 211: Contracts deals with unfair terms i
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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 <strong>of</strong> thenamed suspect.19 Because the Internet operates by breakingelectronic transmissions down into “packets” <strong>of</strong> 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 <strong>of</strong> all <strong>of</strong>the information and sends the original data to its desireddestination.22 On the basis <strong>of</strong> 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 <strong>of</strong> the Carnivore device can be examinedfrom both a constitutional and federal statutory perspective.Because this comment focuses only on the inherent legitimacy <strong>of</strong>the system, assuming proper use, these analyses will be madeignoring any possibilities for misuse <strong>of</strong> the system on the part <strong>of</strong>the 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 FBIS<strong>of</strong>tware; Wiretap Program Can Archive All Internet Communications, <strong>No</strong>v. 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 <strong>of</strong> Donald Kerr, Asst. Director, FederalBureau <strong>of</strong> Investigation).23. Id.24. Id.25. See Hearings 1, supra note 15.
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