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
provision,143 but judging from the application of exclusionaryprovisions applicable to wire and oral communications, it is notencouraging that such a provision would be effective. Statisticsindicate that a defendant’s after-the-fact challenges to theauthorization or conduct of oral and wire surveillance are rarelysustained.144 Between 1985 and 1994, judges nationwide granted138 suppression motions while denying 3,060, for a 4.3%suppression rate.145 In light of this data, it seems highlyimprobable that even after the enactment of an applicableexclusionary provision, any party attempting to challenge theconduct of an electronic surveillance utilizing Carnivore would besuccessful. From this analysis, it is presumable that the use ofCarnivore would not be deemed to violate the privacy protectionsembodied in Title III and the EPCA.CONCLUSIONThe information and analysis presented in this commentsupports the conclusion that the FBI’s Carnivore surveillancedevice is likely to be in compliance with both constitutional andfederal statutory requirements. However, in light of citizenconcern and uncertainty concerning the utilization of Carnivore, Ibriefly propose two plausible solutions that would likely quell, orat least diminish, these fears and concerns while still achievingthe government objective. These proposals are as follows:First, the FBI could replace Carnivore with a less invasivesurveillance system. Since the existence of Carnivore was madepublic last year, several software companies have developedalternatives. One such alternative, “Altivore,”146 works much likeCarnivore. However, unlike Carnivore, Altivore allows for thecollection of just one stream of data as the information flowsthrough the device, thus reducing some fear that unauthorizeddata is being intercepted.147143. 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 Robert Corne-Revere).144. See Robert Plotkin, Breaking the Code: Excluding Illegal Wiretap Evidence, 10BNA Crim. Prac. Manual 432 (1996).145. See Dempsey, supra note 46, at 77.146. See Ann Harrison, Security Software Vendor Develops Carnivore E-MailMonitoring Alternative, Infoworld Daily News, Sept. 21, 2000.147. See id.
Second, ISPs should be given some collaborative role in theconduct of the surveillance. Carnivore, in departure fromordinary telephone taps, inserts the FBI into the ISP’s network.148In fact, the ISP has no role in the surveillance once the ISP assiststhe FBI in connecting to its network.149 Like CALEA, the EPCAshould be amended to require ISP assistance in the collection ofdata from its network. In addition, the FBI should make thetechnology of Carnivore, including the source code and the right tomodify it, available to any ISP that needs to comply with asurveillance order. The involvement of the ISP would serve toconfirm exactly what the operating capabilities of the systemreally are.Obviously, these recommendations are not all of the possiblesolutions that could effectively balance the interest of Internetusers with that of the Government. Yet, whatever resolution isselected, American society must act quickly if it wishes to preservefundamental Fourth Amendment protections as it moves furtherand further into the technology age. Without a doubt, in light ofthe uncertain and inadequate legal and judicial guidancecurrently applicable to the Internet forum, we have a very longway to go.Patricia K. Holmes148. See Dempsey, supra note 19, at AO3.149. See id.; see also Hearings 1, supra note 15 (statement of Sen. Patrick Leahy).
- Page 232 and 233: Cubby, the court in Stratton Oakmon
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- Page 238 and 239: subscribers’ conversations.84 Fur
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- Page 244 and 245: eport, the White Paper on Intellect
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- Page 270 and 271: court will likely, as it has often
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provision,143 but judging from the application <strong>of</strong> exclusionaryprovisions applicable to wire and oral communications, it is notencouraging that such a provision would be effective. Statisticsindicate that a defendant’s after-the-fact challenges to theauthorization or conduct <strong>of</strong> oral and wire surveillance are rarelysustained.144 Between 1985 and 1994, judges nationwide granted138 suppression motions while denying 3,060, for a 4.3%suppression rate.145 In light <strong>of</strong> this data, it seems highlyimprobable that even after the enactment <strong>of</strong> an applicableexclusionary provision, any party attempting to challenge theconduct <strong>of</strong> an electronic surveillance utilizing Carnivore would besuccessful. From this analysis, it is presumable that the use <strong>of</strong>Carnivore would not be deemed to violate the privacy protectionsembodied in Title III and the EPCA.CONCLUSIONThe information and analysis presented in this commentsupports the conclusion that the FBI’s Carnivore surveillancedevice is likely to be in compliance with both constitutional andfederal statutory requirements. However, in light <strong>of</strong> citizenconcern and uncertainty concerning the utilization <strong>of</strong> Carnivore, Ibriefly propose two plausible solutions that would likely quell, orat least diminish, these fears and concerns while still achievingthe government objective. These proposals are as follows:First, the FBI could replace Carnivore with a less invasivesurveillance system. Since the existence <strong>of</strong> Carnivore was madepublic last year, several s<strong>of</strong>tware companies have developedalternatives. One such alternative, “Altivore,”146 works much likeCarnivore. However, unlike Carnivore, Altivore allows for thecollection <strong>of</strong> just one stream <strong>of</strong> data as the information flowsthrough the device, thus reducing some fear that unauthorizeddata is being intercepted.147143. See Hearings on H.R. 5018, Electronic Communications Privacy Act <strong>of</strong> 2000;H.R. 4987, Digital Privacy Act <strong>of</strong> 2000; and H.R. 4908, <strong>No</strong>tice <strong>of</strong> Electronic MonitoringAct, 106th Cong. (2000) (statement <strong>of</strong> Robert Corne-Revere).144. See Robert Plotkin, Breaking the Code: Excluding Illegal Wiretap Evidence, 10BNA Crim. Prac. Manual 432 (1996).145. See Dempsey, supra note 46, at 77.146. See Ann Harrison, Security S<strong>of</strong>tware Vendor Develops Carnivore E-MailMonitoring Alternative, Infoworld Daily News, Sept. 21, 2000.147. See id.
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