With a name like "Carnivore," the FBI's Internet wiretapping system was bound to run into controversy.
Indeed, lawmakers are concerned the two-year-old system, which monitors e-mails from criminal suspects, is perhaps omnivorous, tracking not only the electronic messages of criminals, but of innocent people as well.
"Who monitors this?" inquired Rep. Asa Hutchinson (R) of Arkansas, at a House Judiciary subcommittee hearing this week. "Who reviews and controls the appetite of Carnivore?"
That is a key question being asked not just by lawmakers, but by civil libertarians and some businesses that provide millions of people with Internet service. All of these groups are asking whether federal investigators have struck the right balance between tracking hackers, terrorists, and pornographers in their online habitat and protecting people's privacy rights.
The Carnivore controversy surfaces in a city bombarded by issues relating to privacy and electronic communication.
Just last week, the White House asked Congress to update its wiretapping rules so that the same legal protections that apply to phone calls are extended to e-mail and other forms of electronic communication. Lawmakers in both houses also introduced legislation that would require companies to tell employees if they monitor their computer, Internet, or phone use.
And the Federal Trade Commission said July 21 that a bankrupt online toy company, which had promised consumers it would never sell its customer list, can indeed do just that - as long as the new buyer abides by the original promise.
"We have an Internet explosion, and I don't think the law has kept pace with this," said Rep. Spencer Bachus (R) of Alabama, also at the Carnivore hearing Monday.
In testimony before lawmakers, FBI and Justice Department officials vigorously defended the electronic-eavesdropping system, saying it's an essential tool in an era of exploding cyberspace crime.
"Criminals use computers to send child pornography to each other using anonymous, encrypted communications. Hackers break into financial service companies' systems and steal customer home addresses to commit large-scale fraud on victims all over the world. And terrorist bombers plan their strikes using the Internet," said Donald Kerr, FBI assistant director.
Mr. Kerr emphasized that the FBI uses Carnivore sparingly, in a highly targeted way, and only after obtaining a court order. Since its deployment two years ago, it's been used 25 times.
In one type of interception, in which the FBI wants only to monitor e-mail traffic of a suspect, Carnivore filters the "to" and "from" addresses of e-mails - it does not scan for subject lines because that would involve e-mail content, explained Kerr. And although its program scans information that is not suspect-related, it does not capture or store that information, he said.
If investigators need to look at e-mail content, the hurdles are higher, requiring approval from a high-level Justice Department official and a federal court judge. These are tougher standards than apply to warrants for physically searching a house.
The check on the system, Kerr said, is the approval process, an audit trail, the ability of the court and defense lawyers to review the electronic wiretaps, and the knowledge by investigators that unauthorized surveillance is a federal crime.
"We don't do broad searches and surveillance," he tried to assure lawmakers.
But congressmen on both sides of the aisle were skeptical. "If I could be assured that everybody wouldn't do the wrong thing because there is a statute making it criminal, that would reduce a lot of our efforts," said Rep. John Conyers (D) of Michigan.
That is exactly the point that Barry Steinhardt, associate director of the American Civil Liberties Union makes: What guarantee is there that the FBI is doing what it says it's doing? Carnivore is "roughly the equivalent to a wiretap capable of accessing the contents of the conversations of all the phone company's customers with the assurance that the FBI will record only conversations of the specific target," Mr. Steinhardt said in testimony.
An outside review
The ACLU is demanding that the FBI make its Carnivore programming codes public, to ensure oversight. In fact, the FBI is working to get an independent group of experts to review its program, but it refuses to lay the inner workings completely bare because that would simply encourage criminals to find ways to defeat the system.
"We recognize that concerns remain," said Kevin DiGregory, deputy associate attorney general. The Justice Department has ordered a review of Carnivore.
But even with independent oversight, lawmakers questioned whether one independent verification would do the trick. Carnivore is being constantly updated, and therefore could require regular oversight.
(c) Copyright 2000. The Christian Science Publishing Society