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
FBI facility for subsequent examination by FBI agents.107Similar to the Internet pen register function, advocates ofgreater privacy protections on the Internet are worried that thisprocedure may also present a danger of a general warrant.108Those promoting this position believe there is a risk that atransmission could contain the specified “key word or phrase” butnot be relevant to the government’s investigation.109 For example,if a key word such as “drugs” is authorized, the FBI might collectand review a target suspect’s communication consisting ofanything from a request submitted to a website concerning newdrugs available for AIDS patients, to cures for the common cold.The IITRI report seems to concede this possibility. It states thatwhile the system is designed to, and can, perform fine-tunedsearches, it is also capable of broad sweeps.110 Incorrectlyconfigured, Carnivore can record any traffic it monitors.111 Thereport goes on to state that this possibility may be increased dueto the lack of adequate audit trail provisions or safeguards againstcommon configuration errors.112However, like the pen register function, the relaxedminimization requirements applied by the judiciary to moretraditional wiretap investigations are likely to be similarly appliedto Internet taps. Therefore, the FBI’s erroneous collection andstorage of target suspect material not relevant to the surveillanceis probably constitutionally permissible.Upon analysis, it appears that the FBI’s implementation andutilization of Carnivore is in compliance with Constitutionalprinciples, at least so far as these principles are currentlyinterpreted. The next stage of the legal analysis addresseswhether or not the application of Carnivore complies with federalstatutory wiretap laws.III. FEDERAL STATUTORY ANALYSISThe legitimacy of the Carnivore surveillance system can alsobe analyzed in a statutory context. The focal points of such an107. See Hearings 2, supra note 22.108. See Carnivore’s Controversy, supra note 6.109. See id.110. See Brian Krebs, Study Calls For Stronger Audit Trail In FBI’s Carnivore,Newsbytes, Nov. 21, 2000.111. See id.112. See id.
analysis are the privacy protections included in such provisionsthat add to the constitutional minimum. Once these addedsafeguards are determined, an assessment of how the judiciary islikely to interpret and apply such provisions must be made. Thefollowing presents a commensurate examination of the federalstatutory provisions applicable to Carnivore, as well as theprobable judicial opinion as to Carnivore’s compliance with suchrequirements.In 1968, one year after Katz, Congress passed Title III of theOmnibus Crime Control and Safe Streets Act.113 This actpermitted non-consensual wire or oral eavesdropping by thegovernment as long as the surveillance was done pursuant to therequirements delineated in the act.114 In 1986, Congressamended Title III by passing the Electronic CommunicationsPrivacy Act (EPCA).115The ECPA was intended to enhance Title III by establishingdefinitive rules for electronic surveillance.116 In drafting theECPA, Congress included certain privacy “protections” thatunderlie the essential purpose of the statute. These protectionscan be grouped into three categories.117 First, any attemptedelectronic surveillance is subject to stringent ex parte judicialreview. Second, those conducting the electronic surveillance mustminimize the interception of non-pertinent information during thesurveillance. Third, the conduct of and results derived from anauthorized electronic surveillance may be subject to a stringentadversarial review after the surveillance has been completed.118An analysis will show that these protections, althoughembodied in the language of the ECPA, have been significantlydiminished through judicial interpretation and action. Thus, theutilization of Carnivore, arguably an extremely invasiveinvestigative tool, is likely to be in full compliance with the federalstatutory requirements of the ECPA.Ex Parte Judicial Review113. 18 U.S.C. § 2510 (1994 & Supp. V 1999).114. See id.115. See Christopher Slobogin, Criminal Procedure: Regulation of PoliceInvestigation 190 (2d ed. 1998).116. 18 U.S.C. § 2518 (1986).117. See Dempsey, supra note 46, at 85.118. See id.
- Page 226 and 227: Transactions Act).
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- Page 232 and 233: Cubby, the court in Stratton Oakmon
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- Page 244 and 245: eport, the White Paper on Intellect
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FBI facility for subsequent examination by FBI agents.107Similar to the Internet pen register function, advocates <strong>of</strong>greater privacy protections on the Internet are worried that thisprocedure may also present a danger <strong>of</strong> a general warrant.108Those promoting this position believe there is a risk that atransmission could contain the specified “key word or phrase” butnot be relevant to the government’s investigation.109 For example,if a key word such as “drugs” is authorized, the FBI might collectand review a target suspect’s communication consisting <strong>of</strong>anything from a request submitted to a website concerning newdrugs available for AIDS patients, to cures for the common cold.The IITRI report seems to concede this possibility. It states thatwhile the system is designed to, and can, perform fine-tunedsearches, it is also capable <strong>of</strong> broad sweeps.110 Incorrectlyconfigured, Carnivore can record any traffic it monitors.111 Thereport goes on to state that this possibility may be increased dueto the lack <strong>of</strong> adequate audit trail provisions or safeguards againstcommon configuration errors.112However, like the pen register function, the relaxedminimization requirements applied by the judiciary to moretraditional wiretap investigations are likely to be similarly appliedto Internet taps. Therefore, the FBI’s erroneous collection andstorage <strong>of</strong> target suspect material not relevant to the surveillanceis probably constitutionally permissible.Upon analysis, it appears that the FBI’s implementation andutilization <strong>of</strong> Carnivore is in compliance with Constitutionalprinciples, at least so far as these principles are currentlyinterpreted. The next stage <strong>of</strong> the legal analysis addresseswhether or not the application <strong>of</strong> Carnivore complies with federalstatutory wiretap laws.III. FEDERAL STATUTORY ANALYSISThe legitimacy <strong>of</strong> the Carnivore surveillance system can alsobe analyzed in a statutory context. The focal points <strong>of</strong> such an107. See Hearings 2, supra note 22.108. See Carnivore’s Controversy, supra note 6.109. See id.110. See Brian Krebs, Study Calls For Stronger Audit Trail In FBI’s Carnivore,Newsbytes, <strong>No</strong>v. 21, 2000.111. See id.112. See id.
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