Vol 7 No 1 - Roger Williams University School of Law

conversations, of which 223 minutes, or 2.75% were deemedpertinent to the investigation.137 The FBI explained that it wasnecessary to listen to a large number of conversations todetermine their relevancy, not because they were short and coded,as in Scott, but because they were lengthy and containedcomplicated subject matter.138The Carnivore system cannot be implemented withoutintercepting electronic transmissions unrelated to the targetsuspect.139 Also, the system operates by intercepting and copyingall communications sent to or received by an individual undersurveillance.140 Thus, a situation requiring effective minimizationof information not pertinent to the investigation is very muchpresented. However, based on the collective reasoning applied bythe judiciary, it appears improbable that a failure by the FBI toadequately minimize the interception of such data whileimplementing Carnivore would have any significant statutoryramifications.Post-Surveillance Judicial ReviewEPCA provides that that an individual who is subject togovernment conducted electronic surveillance is entitled to anafter-the-fact judicial review of the authorization and conduct ofthe surveillance.141 However, the EPCA currently contains noexclusionary provision for illegally obtained electronictransmissions in transit.142 Arguably, this would be the type ofelectronic information Carnivore expressly targets. A proposedamendment to the EPCA suggests the implementation of such a137. Ozar, 50 F.3d at 1448.138. Id.; see also Dempsey, supra note 46, at 77.139. See Hearings 1, supra note 15 (statement of Sen. Patrick Leahy).140. See Hearings 2, supra note 22 (statement of Donald Kerr, Asst. Director,Federal Bureau of Investigation).141. See Digital Telephony and Law Enforcement Access to AdvancedTelecommunications Technologies and Services: Joint Hearings on H.R. 4922 and S.2375 Before the Subcomm. on Tech. and the Law of the Senate Comm. on the Judiciaryand the Subcomm. on Civil and Constitutional Rights of the House Comm. on theJudiciary, 103rd Cong. 6 (1994) (testimony of Louis J. Freeh).142. See Hearings on H.R. 5018, Electronic Communications Privacy Act of 2000;H.R. 4987, Digital Privacy Act of 2000; and H.R. 4908, Notice of Electronic MonitoringAct, 106th Cong. (2000) (statement of Gregory T. Nojeim, Legislative Counsel,American Civil Liberties Union).