Rutgers Computer and Technology Law Journal
Notes and Comments
CARNIVORE IN CYBERSPACE: EXTENDING THE ELECTRONIC COMMUNICATIONS
PRIVACY ACT'S FRAMEWORK TO CARNIVORE SURVEILLANCE
Geoffrey A. North [FNa1]
Copyright © 2002 Rutgers Computer and Technology Law Journal; Geoffrey A.
With each advance of communications technology comes a correlated advance in the technology of surveillance: if the developments of the Internet and e-mail constitutes a revolution in the way Americans communicate, these developments have fomented a similar revolution in the way the United States government investigates crime. While some advances in surveillance have been facilitated by the passage of the Communications Assistance for Law Enforcement Act of 1994 (CALEA) [FN1], perhaps the single most powerful and far-reaching surveillance tool to monitor Internet communications arose out of the governmental concern of preventing cyberspace from being overrun with crime. This tool has been ominously dubbed "Carnivore." [FN2]
If advances in communications and surveillance technology occur in distinct and evenly matched steps, it should not be surprising that Carnivore's features mirror the elements of the major telephonic surveillance devices: wiretaps, pen registers and trap-and-trace devices. Carnivore, however, is believed to impound information transmitted through cyberspace with unprecedented efficiency.
While privacy advocates have expressed deep concerns about the potential abuses of Carnivore's capabilities, government officials have argued powerfully for the need to patrol the electronic frontier for potential crime.
The balancing of the interests of these sometimes polarized groups will shape the structure of this note. In Part II of this Note, the known facts surrounding Carnivore will be examined, with a discussion of Carnivore's similarity to telephonic surveillance devices. Part III will survey the current state of pertinent Fourth Amendment law, including the Katz doctrine, its progeny, and cases decided under Title III of the Omnibus Crime Control and Safe Streets Act [FN3] and the Electronic Communications Privacy Act of 1996 (ECPA) [FN4]. Finally, this Note will conclude that the safeguards provided under those two Acts are readily applicable to Carnivore, and should be used to develop a balance between the privacy interests of the public at large and the law enforcement interests of the government.
II. Privacy and Law Enforcement in Cyberspace
The FBI computer labs in Quantico, Virginia recently developed "Carnivore," with the express intent of creating a tool capable of tapping into and monitoring Internet traffic. [FN5] The specter of Carnivore now looms heavily over cyberspace, for it is feared that the application will be used by the FBI to "police cyberspace." [FN6] While government agencies such as the FBI and the Department of Justice have long had the ability to monitor private telephone conversations with a variety of technological devices, electronic communication was believed to be secure from monitoring by the government. Now, however, the advent of Carnivore has officially extended the reach of the FBI into cyberspace.
It is not merely that the FBI now has the ability to monitor private electronic communications that has made civil liberties groups apprehensive, it is the breadth of the government's reach. Barry Steinhardt, the Associate Director of the American Civil Liberties Union (ACLU) recognizes the governmental interest in preventing the Internet from becoming overrun with criminal plotting and actual illegal acts, but believes some boundaries must be set for governmental agencies. [FN7] As Steinhardt notes, "[t]he central issue is how much liberty the government should be able to destroy in order to 'catch a few perps." ' [FN8]
Due to its vast information-gathering capacity, Carnivore's targets will not necessarily be limited to specific e-mail transmissions that are suspected of communicating details of illegal activities. Carnivore is not subject to the concerns of efficiency and time which force the government to target specific individuals for conventional telephone wiretaps. Rather, Carnivore may have the ability to impound all electronic communications, then filter out those that do not give rise to investigation. One commentator, James H. Johnston, recalls:
[T]he apocryphal story of the ruthless commander of the Ottoman forces that sacked Constantinople. When he saw the defenders and residents of the city take sanctuary in a church, he ordered his men to set it afire. A lieutenant pointed out that there were faithful as well as infidels inside, but the general said, 'Burn it anyway, and let God sort them out.' [FN9]
A great deal of concern has arisen among civil liberties groups such as the ACLU because so little is known about Carnivore's reach and capabilities.
While an independent review of Carnivore has recently been completed, it has faced pointed criticisms from advocates of personal privacy. The review team that was chosen from the Illinois Institute of Technology's Research Institute "include[d] a large number of White House insiders, including a former Clinton information policy advisor, and a former Justice Department official." [FN10] This research group's stated objective was to "determine whether it's technically possible for Carnivore to snoop on e-mail beyond the scope of a wiretap order, and whether it poses other privacy risks." [FN11]
The Attorney General for the Clinton Administration, Janet Reno, allowed for the eventual release of thousands of pages of information regarding Carnivore. However, an initial block of information released, totaling over seven hundred pages of material, has encountered reactions of deep disappointment. [FN12] Much of the material that has thus far been declassified and released has been stripped of any value, its meaning obscured by the blocking out of apparently key portions censored by the government before its release. [FN13] The anticipated release of an additional two hundred pages was withheld completely. [FN14]
There have also been numerous calls for the FBI to make Carnivore's source code publicly available. [FN15] Due to the inadequacies that have riddled the independent review and releases of information thus far, many critics believe that this step will be the most effective way to ascertain the potential reach of Carnivore. The FBI, however, has resisted, fearing that such a release will, in effect, hand over the use of Carnivore's capabilities to hackers. [FN16]
The lack of available information about Carnivore, combined with what some believe is a lack of candor on the part of the government in disclosing only the most general details has fueled the fears of civil liberties groups that Carnivore really does possess the power to conduct all-encompassing surveillance of communications carried out in cyberspace.
Among such groups' greatest worries is that Carnivore has the far-reaching power to surveil either all correspondence that takes place over the Internet or through e-mail, or any that the investigating governmental agency chooses, regardless of whether a warrant to seize such information has been obtained. [FN17] In addition, opponents of Carnivore fear that the program gives the FBI the power to read all correspondence it intercepts and then filter out the innocuous transmissions. Donald Kerr, FBI Assistant Director, has testified to Congress that Carnivore "does not search through the contents of every message and collect those that contain key words like 'bomb' and 'drugs." ' [FN18] The ACLU, however, has claimed that the FBI is engaged in an "'unprecedented' power grab that threatens the privacy of all Americans." [FN19] Moreover, the FBI has offered only its word as assurance that Carnivore's power is not being abused. [FN20]
The federal government has an undeniable interest in protecting the safety of American citizens. This governmental interest extends into cyberspace as well. [FN21] Privacy groups argue, however, that this interest must stop somewhere short of observing the contents of e-mail messages that pass between private individuals, tracking the destinations of Internet users, and monitoring an individual's electronic communications. Just as some commentators have looked to the "interest that a law enforcement officer might have in examining the contents of a hard drive . . . [for] the trove of information there may yield important insights into crimes that the owner may have committed," there is a similar temptation for law enforcement officers to observe the communications and correspondence of an individual through the Internet and through e-mail. [FN22] In fact, because Carnivore gives the government the ability to sift through all e-mail correspondence that passes through an Internet Service Provider ("ISP"), the governmental reach may be even more insidious.
A. How does Carnivore work?
The greatest source of apprehension surrounding Carnivore is the lack of both public and expert understanding of how the application functions, and then, to what extent Carnivore can and will be implemented to monitor or intercept e- mail and other electronic correspondence. [FN23] James Dempsey, senior staff counsel for the Center for Democracy and Technology, explains that "[t]he first problem with Carnivore is that even [the] ISPs [where Carnivore has been installed] do not know how it works and how its searches are limited." [FN24]
Installed and configured to properly reflect the specifications detailed in a warrant, Carnivore does not possess the sinister characteristics that privacy advocates attribute to it. Donald Kerr, Assistant Director of the FBI, testified at a Senate Judiciary Committee Hearing in 2000 that Carnivore "can be configured to specifically comply with each court order." [FN25] The Carnivore system is made up of several seemingly harmless components. First, it is a "conventional personal computer . . . installed on the premises of an Internet Service Provider." [FN26] This computer is equipped with a modified version of commercially available software: a "customized" version of a "Windows 2000 application." [FN27]
However, Carnivore is more than merely the sum of its parts. The modifications to the Windows application infuse Carnivore with the power to police the traffic flowing through the ISP in which it has been installed. These modifications allow the FBI to "intercept and view . . . the E- mail [and] Web browsing activity or other Internet traffic of a suspect." [FN28] The electronic transmissions traveling through an ISP in which Carnivore has been installed "will be routed through Carnivore, which will extract and record whatever information is specified in a warrant issued by a court." [FN29]
The Carnivore application bears a strong resemblance to programs known as "packet sniffers." Packet sniffers are so named because of the way in which e- mail messages are transmitted through cyberspace. Upon transmission, e-mail messages are disassembled, or "broken up into 'packets,' or uniform chunks of data." [FN30] The packets then travel to their final destination. Depending upon certain circumstances, the various packets that comprise a single e-mail message may travel vastly different routes before arriving at their ultimate destination. The packets may arrive out of order and be reassembled in correct sequence once they reach their final destination. Alternately, the packets may travel together and reach their destination in a unified form.
Carnivore is, essentially, a sophisticated packet-sniffing device. Under one of its functions, "Carnivore 'sniffs' [the packets that comprise e-mail messages flowing through an ISP] to read the address information in the header. If the packet is to or from a targeted e-mail address (Carnivore search warrants might well name an e-mail address rather than a person), Carnivore will, depending on the court order, record either the address information or the entire packet on its hard disk." [FN31] After such an interception, an FBI agent can use software to reassemble the collected packets and "read the information that Carnivore has taken in." [FN32] The agent must then determine "which information is relevant and which is not. The irrelevant information is deleted immediately and no copies are kept. The relevant information becomes part of the working papers of the investigation." [FN33]
C. Carnivore's capabilities: Search functions
Carnivore is capable of carrying out several types of interceptions. This Note will examine the functions that are analogous to the searches that can be performed in the context of telephonic surveillance. Carnivore can be configured to collect data based on either the content of, the destination of, or the origin of, (or some combination of these) data transmitted over the Internet or through e-mail. The ten Carnivore functions identified and tested in the Independent Technical Review of the Carnivore System are directly analogous to telephonic surveillance devices, or hybrids of those devices.
These functions fall generally into two categories: those that sort through and collect data based on its content, and those that target transmissions based on "non-content" [FN34] elements such as the address to which a transmission is directed, or the address from which a transmission is received.
The latter category consists of three configurations. The results of these configurations resemble, to some degree, the results that are obtained using telephone pen-register filtering: (1) non-content e-mail collection, by which the non-content (or "From" and "To" address) fields contained in e-mail transmissions are collected; [FN35] (2) non-content web browsing collection, by which the internet protocol ("IP") addresses for a target's web browsing activities are collected; [FN36] and (3) non-content file transfer activity collection, by which the source and destination IP addresses, but not the content, of the target's file downloading activity are collected. [FN37]
The former category includes the configurations that produce results that more closely resemble those that would be achieved using telephone wiretaps. These include: (1) full collection on a fixed IP address, (by which "the contents of communications to and from a target, who has a fixed IP address - includ[ing] web browsing contents, FTP login session, commands and data, e-mail contents from the target IP address" are collected); [FN38] (2) e-mail content collection, by which the contents of e-mail communications that were sent from and to a target e-mail ID are collected; [FN39] (3) alias e-mail collection, by which outgoing e-mail of a target who has an alias is collected; (4) filtering of text strings on web activity, by which the web- browsing contents that contain a specific text string are collected; [FN40] (5) filtering on text string for e-mail collection, by which e-mail containing a key word is collected; [FN41] (6) filtering on text string and e-mail address or e-mail user ID for e-mail collection, by which both a search can be narrowed by targeting both an e-mail address user name and a key word; [FN42] and (7) filtering on text string for FTP collection, by which FTP communication containing a key word is collected. [FN43]
D. Telephonic surveillance devices
Much of the existing case law surrounding the Fourth Amendment implications of searches and seizures of electronic communications is derived from the monitoring of telephonic communications; therefore, it is useful to briefly examine the three main devices used to carry out such surveillance.
All three of these devices bear some similarity to Carnivore in that they must be physically linked to the system in which the communication is being transmitted. However, while Carnivore is installed at the central location of an Internet Service Provider's premises, a wiretap is often installed at the premises from which the monitored individual transmits communications. Therefore, by this feature (combined with its ability to filter all communications that pass through it), Carnivore may, in effect, eliminate the need to target a specific location or individual, and thus remove the variable of efficiency in carrying out a search.
Once attached to a telephone line, a "pen register" allows the user to record the date and time a telephone call is placed. Most importantly, a pen register records the number dialed from the line. [FN44]
Neither pen registers nor Carnivore physically intrude upon a monitored individual's home. Pen registers, unlike wiretap devices, are installed at a remote location, on telephone company property. Similarly, Carnivore is installed on an Internet Service Provider's property, and never physically reaches an individual's home.
Like a pen register, a "trap and trace" telephone monitoring device is attached to the telephone line of an individual who is being monitored. Instead of monitoring outgoing call information, however, a "trap and trace" device records the date, time, and telephone number of all incoming calls. [FN45]
Finally, a wiretap enables an investigator to monitor content by allowing him or her to "listen and record the telephone conversation itself." [FN46]
These devices can be used separately or in conjunction with each other to establish a comprehensive record of telephone calls made and received at a particular location, in addition to the content of the calls. [FN47]
Carnivore also combines these features under one application; however, because Carnivore can monitor both e-mail correspondence and Internet traffic, it can intercept not only conversations similar to those that could be monitored by the telephonic devices, but it also can be used to monitor an individual's movements from destination to destination on the Internet. Based on the content of websites a monitored individual visits, the FBI has the potential to make damaging inferences about an individual. This feature of Carnivore may allow the FBI to carry out even farther-reaching investigations of an individual than those carried out through the use of telephonic devices.
James Dempsey believes that there is a clear distinction between Carnivore and "ordinary telephone taps," because the way in which Carnivore has been implemented has, in effect, "insert[ed] the FBI into the ISP network." [FN48] Dempsey asserts that this is a formula for disaster, because it gives the FBI too much leeway. Instead, he proposes that "ISPs should control their own networks, isolating and delivering to the government only what the government is entitled to intercept, thus serving as a buffer between the government and the communications of innocent customers." [FN49] Furthermore, Dempsey believes that "the FBI should make the technology of Carnivore - including some of the source code and the right to modify it - available to any ISP that needs it to comply with a surveillance order. This would reinstate the kind of checks and balances we depend on to preserve our rights." [FN50]
"Carnivore is used not only for wiretaps but also for other forms of surveillance that are conducted with no judicial oversight, under the weak standards of the 'pen register' statute, drafted for the telephony world. Carnivore collects addressing information from the Internet that is much more revealing than the dialed telephone numbers collected by pen registers. If the government is to collect on the Internet transactional information more personally revealing than that collected on telephone lines, then Congress must impose higher standards for the government to engage in such surveillance." [FN51] The FBI claims that Carnivore meets the standards of Federal wiretapping standards. "Carnivore can be configured to intercept only those E- mails being transmitted either to or from the named subject." This type of technology exists in a commercially available form. [FN52]
III. The evolution of Fourth Amendment law in the Twentieth Century's
The Fourth Amendment of the United States Constitution provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [FN53]
However, the Fourth Amendment right to privacy does not operate as an absolute protection against all intrusions by the government. The need for law enforcement agencies to investigate has been recognized by the courts as well. There is a legitimate governmental interest underlying the creation and implementation of Carnivore. The Internet provides, in essence, an entirely new and sprawling means of communication. As with the telephone system before it, the Internet can be used by criminals to plan and even carry out illegal activities. [FN54] However, just because there is potential for harmful uses does not imply that the government should be unbridled in the monitoring of all that passes across the Internet's lines of transmission.
A. The Development of Fourth Amendment Law
Traditionally, the first step in the analysis of Fourth Amendment search and seizure issues is for a court to determine whether a search has, in fact, taken place. The standard used to address this question in the context of various methods of eavesdropping, like the technology used to carry out the eavesdropping itself, has been in a state of flux throughout the twentieth century. The FBI has, in essence, conceded that e-mail is protected by a reasonable expectation of privacy, by requiring law enforcement officials to secure a warrant before deploying Carnivore. Nevertheless, it is instructive to examine the evolution of the standard in order to provide a historical context for the law's regard for the progress of surveillance technology.
For several decades, the controlling standard for the legality of searches and seizures was articulated in Olmstead v. United States. [FN55] Olmstead and several co-conspirators were convicted of violations of the Prohibition Act on the basis of information gleaned from telephone wiretaps. Olmstead objected to the use as evidence:
The information which led to the discovery of the conspiracy and its nature [because it] was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. [FN56] The key distinction that made the surveillance of Olmstead's telephone communications non-violative of the Fourth Amendment was that "[t]he insertions were made without trespass upon any property of the defendants." [FN57] The Olmstead Court reasoned that "[t]he well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers, and his effects; and to prevent their seizure against his will." [FN58] The defining characteristic of the challenged search in Olmstead, was that the "evidence was secured by the use of the sense of hearing and that only." [FN59] The Court reasoned that the search did not violate the defendant's Fourth Amendment rights because "[t]here was no entry of the houses or offices of the defendants." [FN60]
This view of the Fourth Amendment arises from a rigid reading of its text. [FN61] Critics argue that the Olmstead Court's interpretation of the Fourth Amendment was flawed as soon as it was conceived: such strict adherence to the Amendment's text needlessly turned a blind eye to what were foreseeable technological advances. [FN62]
Consequently, Olmstead is now referred to for Justice Brandeis' dissenting opinion as often as it is for its holding. Espousing a flexible interpretation of the Fourth Amendment in the face of technological advances in the field of communication, [FN63] Justice Brandeis laid the groundwork for the currently prevailing expectation of privacy standard. Furthermore, Justice Brandeis presaged current thinking on Fourth Amendment searches and seizures, by pointing to its language as the source of an inalienable "right to be let alone." [FN64]
Olmstead's "trespass doctrine" was overruled by Katz v. United States. [FN65] Katz was charged with illegally "transmitting wagering information by telephone . . . in violation of a federal statute." [FN66] In pursuit of Katz, the FBI installed "an electronic listening and recording device" in the wires of the public telephone booth Katz had been using. [FN67] The Court determined that:
[T]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiable relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. [FN68] The rule in Katz is often distilled to the idea that "the Fourth Amendment protects people, not places." [FN69] However, it is Justice Harlan's concurring opinion that articulates the two-tiered test for determining whether an individual's expectation of privacy in voice (and now data) communications is reasonable:
[F]irst, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. [FN70]
The first prong of this test is considered to be the threshold requirement. If the individual being monitored cannot meet this requirement, no search has taken place, and therefore, there can be no violation of the Fourth Amendment. [FN71]
Once the first prong of the test has been satisfied, a court can consider whether society considers the expectation of privacy reasonable under the circumstances of the search. Courts have previously considered a variety of factors in evaluating this second prong: "property interests, the use ascribed to the area searched, society's longstanding beliefs, current circumstances, and legislative enactments." [FN72]
B. The Effect of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronic Communications Privacy Act
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 [FN73] codified the Fourth Amendment principles set forth by the Katz Court. Title III, following Justice Harlan's concurrence in Katz, contemplates the reasonable expectation of privacy requirements. [FN74] Title III also preserves the implicit balancing that constitutes the underpinning of Fourth Amendment analysis, by proscribing the interception of oral and wire communications, "while making provision for law enforcement to intercept these communications for use in criminal investigations." [FN75]
The Electronic Communications Privacy Act of 1986 ("ECPA") amended Title III when it became clear that Title III was not equipped to deal with the advance of technology in the field of electronic communication. [FN76] ECPA was intended to align Title III with innovations such as "cellular telephones, computer-to-computer transmissions, and electronic mail systems . . . ." [FN77]
Title I of the ECPA prohibits unauthorized interception of electronic communications. [FN78] In this context, unauthorized means, among other things, those communications impounded without the authority of an appropriate court order. [FN79] Title II proscribes the unauthorized access to stored wire and electronic communications. [FN80] However, despite the ECPA's attempts to modernize existing legislation, it was unable to resolve the potential quagmires surrounding the application of the reasonable expectation of privacy standard. While the privacy standard still controls, it is increasingly difficult to apply because it is not always "clear or obvious" whether such a reasonable expectation exists among users of these new technologies. [FN81]
C. Beginning The Surveillance Process
In developing guidelines for the deployment and use of Carnivore, the FBI has conceded that an investigating agent must obtain a warrant before beginning a surveillance. The process of obtaining a warrant hinges upon the FBI's ability to "demonstrate to the satisfaction of a judge probable cause that a crime has been committed or is about to be committed and that the surveillance is necessary to obtain relevant information." [FN82]
In order for the FBI to obtain authorization to begin using Carnivore's "pen register" function to conduct surveillance, it is only necessary for the FBI to "show the relevance of the information sought." [FN83]
IV. Following the Framework of the ECPA to Restrict the Scope of Carnivore
The FBI has derived a series of safeguards directly from the ECPA that must be satisfied before Carnivore can be deployed. [FN84] First, only certain high-ranking officials in the Department of Justice "can authorize application for a wiretap via Carnivore or any other mechanism." [FN85] The second restriction provides that Carnivore can only be used in the investigation of a felony. [FN86] Third, "only an Article III judge or state court may grant the order." [FN87] The fourth and fifth requirements are directly related to traditional probable cause and warrant requirements. The showing of probable cause, however, must be accompanied by a showing that "normal investigative procedures have been tried and have not been sufficient, and that there is probable cause to believe that communications relevant to the investigation can be captured." [FN88] The fifth requirement describes the particularity of the wiretap order, and requires that such an order contain:
(1) [T]he identity of the interceptee, if known; (2) the nature and location of the communications facilities to which the authority to intercept is granted; (3) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (4) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and (5) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall be automatically terminated when the described communication is first obtained. [FN89] The final requirement places stringent limits upon the duration of the use of the device, providing that "'the interception of communication' must be 'minimized,"' and must not "continue for 'any period longer than is necessary to achieve the objective of the authorization, or in any event longer than thirty days." ' [FN90]
There is a large and well-developed body of case law under the ECPA and the Omnibus Crime Control and Safe Streets Act of 1968. The federal court system has consistently held, under a broad spectrum of circumstances, that these requirements must be satisfied to the letter in order for information obtained by the use of surveillance devices to be admitted as evidence in the prosecution of a criminal defendant. The policy of strict adherence to the provisions of the ECPA and the Omnibus Act favored by federal courts works as a bulwark against abusive or unauthorized use of such technology by law enforcement officials.
The ECPA allows for the post-interception remedy of the suppression, at trial, of evidence improperly captured by wire, oral, or electronic surveillance. [FN91] Therefore, a law enforcement official's failure to adhere to the details of the ECPA scheme may have the dire consequence of stripping the prosecution of its ability to use the information, regardless of its potentially damaging effect. The threat of the suppression of evidence should operate as a deterrent to such improper use of surveillance tools, including Carnivore.
Federal courts have been confronted with motions to suppress improperly collected evidence based on nearly every conceivable ground under the Omnibus Act and the ECPA. For example, the failure of law enforcement officials to include basic, requisite details in an application for an order to commence surveillance, [FN92] as well as more fundamental attacks on the power of the government to conduct such surveillance have been raised as reasons for the suppression of evidence. [FN93] In considering such motions, courts attempt to attain a balance between individual privacy interests and the needs of law enforcement to effectively pursue criminal activity.
A. Authorization by the Attorney General
The formalistic approach federal courts take in the analysis of orders for surveillance is illustrated by the United States Supreme Court's discussion in U.S. v. Chavez. [FN94] In Chavez, the Court examined the consequences of a failure to properly identify the express authority of the Attorney General in a wiretap order. [FN95] The Court considered whether information intercepted in electronic surveillance, implemented under an order that incorrectly identified the authorizing officer as an Executive Assistant to the Attorney General, should be suppressed because of the order's failure to conform exactly to 18 U.S.C. § 2516's requirement that the authorizing officer be the Attorney General or the Assistant Attorney General. [FN96]
Although the Supreme Court ultimately reversed the Ninth Circuit Court of Appeals' order to suppress, [FN97] the Chavez Court reiterated that a general policy of unbending compliance with all of the provisions of Title III should be advanced. [FN98] While in some rare cases, a failure to clearly present the Attorney General's approval of an application for surveillance may be overlooked, in most cases, such a deviation should spell doom for the government's ability to present wire information captured under the order at trial. The government's interest in enforcing the sanctity of all provisions of Title III should be clear: without the public's support, an Attorney General whose failures to enforce the ECPA's safeguards capture the public's attention will be susceptible to political ramifications.
Furthermore, the Court's holding in Chavez does no damage to the additional authorization requirements contained in 18 U.S.C. § 2516. Again, these authorization requirements envision the fixing of responsibility of ensuring the propriety of surveillance orders upon a single figure, the Attorney General, who must answer to the authority of the public at large. [FN99]
B. The Reporting Provisions of the ECPA
A protection directly related to the Attorney General's accountability in the context of the political process is that contained in the reporting provisions of 18 U.S.C. § § 2518(1)(a), 2518(4)(d) and 2519. These provisions require that statistics reflecting surveillance orders and their results be reported to the Administrative Office of the United States Courts. [FN100] This office would then make these reports publicly available. [FN101] In arriving at its decision in Chavez, the Court concluded that these reports operate as a concrete means by which the public can ascertain the effectiveness and propriety of surveillance orders authorized by the Attorney General. "The purpose of these reports is 'to form the basis for a public evaluation' of the operation of Title III and to 'assure the community that the system of court- ordered electronic surveillance . . . is properly administered." ' [FN102]
C. The Deployment of the Device must be in an Investigation of Felony
Federal courts have upheld the statutory structure that limits the implementation of electronic surveillance equipment to the investigation of enumerated felonies listed in 18 U.S.C. § 2516 that either have been or are about to be committed. [FN103] The courts frequently considered the effectiveness of electronic surveillance in combating the breed of criminal activity at issue. For example, electronic surveillance has long been considered to be among the most effective investigative means by which the full extent of a broad network of conspirators in an organized crime operation can be ascertained. [FN104] Similarly, certain types of criminal activity have become associated with the Internet. [FN105]
In United States v. United States District Court for the Eastern District of Michigan, [FN106] the United States Supreme Court contemplated the possible effects of allowing the President to order surveillances in matters of domestic safety without first securing a warrant. The Court rejected such searches as an impermissible failure to meet the standard of reasonableness that is met when probable cause is shown. [FN107]
In a concurring opinion, Justice Douglas further warned of the dangers of warrantless searches carried out without an underlying crime:
[H]ere, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground . . . . We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. [FN108]
The Court similarly recognized the danger of possible abuses of warrantless searches authorized only by the President: if such surveillance were to be allowed, the President "'on his motion, could declare"' any group or individual who poses a political threat, or is generally unpopular, "'to be a clear and present danger to the structure of the Government."' [FN109] If granted, this type of unchecked power would undermine not only the balance between individual privacy and law enforcement efforts, but would disrupt the "open public discourse [that] is essential to our free society." [FN110]
D. Normal investigative procedures must have been attempted or exhausted
"Due to the clandestine nature of electronic eavesdropping, the need is acute for placing on the Government the heavy burden to show that the 'exigencies of the situation make its course imperative." ' [FN111] This showing requires "[t]he FBI [to] explain why traditional enforcement methods are insufficient to obtain the information desired." [FN112] While this requirement should operate as a safeguard against the indiscriminate use of Carnivore, [FN113] courts have traditionally been reluctant to construct an overly burdensome standard against the applicant for a surveillance order. [FN114] An inflexible standard would hinder law enforcement's ability to pursue criminal activity efficiently. Therefore, in order to ensure that law enforcement efforts can keep pace with criminal activity, courts have generally viewed "the statutory requirement 'that normal investigative procedures' be first exhausted . . . in a 'practical and common sense fashion." ' [FN115]
To engage in this kind of "common sense" analysis requires a judge to consider "whether or not normal investigative procedures have been tried and have failed or why they are unlikely to succeed if tried, or to be too dangerous" against the backdrop of "all the facts and circumstances." [FN116] This kind of "common sense" analysis results in allowing the government to obtain authorization for wire or electronic surveillance, even though it may not have proven that "every other imaginable method of investigation has been unsuccessfully attempted." [FN117]
E. Minimization: A Final Check on the Reasonableness of the Scope of the Surveillance
Searches carried out using the Carnivore system are subject to at least two stages of "minimization." [FN118] The first of these stages occurs when the Carnivore system is configured to capture only the information specified in the court order. [FN119] The second stage occurs when the FBI agent involved with the case "determines which information [that Carnivore captures] is relevant and which is not. The irrelevant information is deleted immediately and no copies are kept. The relevant information becomes part of the working papers of the investigation." [FN120]
At trial, the target of a surveillance that has been conducted can challenge the scope of the wiretap under 18 U.S.C. § 2518(5). [FN121] This section requires that the interceptions made in the surveillance must be "minimized." Section 2518(5) provides that the interception "may not be longer than necessary" to achieve the objective of the authorization. [FN122] Section 2518(5) does not set forth a definition of minimization, nor does it offer guidelines on how to achieve proper minimization beyond its provision that without authorized extensions, at its longest, a surveillance must cease after thirty days has lapsed. [FN123] Section 2518(6) allows for a judge to monitor the progress of a surveillance that has been authorized. [FN124]
Courts have consistently held that the minimization requirement is to be applied on a case-by-case basis. The factors courts have considered in whether acceptable minimization has been carried out include the percentage of communications intercepted out of all communications, [FN125] the length of time conversations are monitored before they are determined to be relevant or irrelevant, [FN126] the percentage of intercepted conversations that were not pertinent to the investigation, [FN127] and whether the surveillance continued beyond the determined end date. [FN128] Although a court may take statistics reflecting these factors into consideration, "blind reliance on the percentage of nonpertinent calls intercepted [for example] is not a sure guide to the correct answer." [FN129] The correct approach for a court considering minimization questions is to suppress:
[E]vidence derived from an electronic surveillance order unless, after reviewing the monitoring log and hearing the testimony of the monitoring agents, it is left with the conviction that on the whole the agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusion. [FN130]
This approach demands that courts examine the overriding circumstances of a surveillance scheme. For example, the United States Supreme Court has held that in some cases, even a wide-range monitoring of "virtually all conversations" need not violate the principle of minimization. [FN131]
It is "also important to consider the circumstances of the wiretap. For example, when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise." [FN132] Courts have even permitted evidence collected in unauthorized extensions beyond the wiretap order to be used at trial. [FN133]
This method of analysis is particularly necessary in the face of examining the surveillance of complex schemes of criminal activity. For example, in United States v. Cox, the court noted that in enacting 18 U.S.C. § 2518(5):
[A]s a part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 . . . Congress was considering problems of great complexity and was seeking to treat them in a reasonable manner. An overly restrictive interpretation of the minimization requirement could make it impossible to use this device in connection with the investigation of organized criminal conspiracies. [FN134]
F. Pen registers
The Katz rationale has been roundly criticized since the case was decided. [FN135] One such criticism is that the Court's determination of the range of conduct that falls under the protection of the objective standard is marred by disparities with current perspectives. [FN136] Such disparity is borne out in Smith v. Maryland, [FN137] in which the Court first articulated its position on the Fourth Amendment implications of the use of pen registers to intercept the numbers dialed on a monitored phone. [FN138]
The Smith Court based its reasoning upon the assumption of risk analysis propounded in United States v. Miller. [FN139] The Miller Court held that a bank depositor has no "legitimate 'expectation of privacy" ' in financial information "voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business." [FN140] Likewise, the Smith Court held that an individual targeted in pen register monitoring cannot maintain a reasonable expectation of privacy in the telephone numbers he dialed from his home telephone. [FN141] Any telephone user, the Court reasoned, must know that in dialing, he "convey[s] numerical information to the phone company . . . and that the phone company . . . record[s] this information for a variety of legitimate business purposes." [FN142] A telephone user could not sustain a claim of a reasonable expectation of privacy - he would fail to meet the second prong of the Katz analysis. [FN143] Therefore, the Court held that the installation and use of a pen register "was not a 'search,' and no warrant was required." [FN144]
The Smith Court was deeply divided, with two dissenting opinions, both of which relied upon the Katz rationale to conclude that dialed telephone numbers should fall under the protection of the Fourth Amendment. [FN145] Justice Stewart argued that because "[t]he numbers dialed from a private telephone . . . are not without 'content," ' they should be considered to be framed by a reasonable expectation of privacy. [FN146] Consequently, the dialed numbers should be afforded the "constitutional protection recognized in Katz." [FN147]
A separate dissenting opinion by Justice Marshall also relies upon the principle that the Fourth Amendment contemplates an individual's right to privacy. [FN148] Justice Marshall was willing to concede that an individual may understand that the telephone company records dialed telephone numbers; however, he rejected the idea that such an understanding can give rise to the expectation that:
[T]his information [will] be made available to the public in general, or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. [FN149]
Justice Marshall's dissent foreshadows the current concern among privacy groups about the potential ramifications of Carnivore's ability to impound vast amounts of information transmitted electronically through an Internet Service Provider. [FN150] Justice Marshall wrote:
Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. [FN151]
If Justice Marshall's and Justice Stewart's assertions that telephone numbers dialed from an individual's home should be protected by the Fourth Amendment because of their content hold true, then the truth of these assertions must redouble in the context of web-site addresses. [FN152] Web-site addresses are far more revealing than telephone numbers; in fact, web-site addresses are frequently chosen for their descriptive or suggestive capacities. Law enforcement officials need look no further than the face of an intercepted web- site address to make inferences regarding the content of an individual's Internet destinations. The stream of an individual's Internet traffic, even observed solely through these addresses, if pieced together could, as Justice Stewart noted regarding telephone numbers in Smith, "easily . . . reveal the most intimate details of a person's life." [FN153]
Because web-site addresses may reveal significantly more substantive content of an individual's communications than telephone numbers, the pen register function of Carnivore again raises the issue of what constitutes a search under the Fourth Amendment. [FN154] Following Smith, federal courts have held that the installation of a telephone pen register is not a separate search and consequently, "a separate order is not necessary when a pen register is used along with an authorized wiretap." [FN155]
Such reasoning, however, if applied to the pen register function of Carnivore, would allow the government to intrude further into private communications than the majority opinion in Smith contemplates. The technological advances represented by the Carnivore pen register function therefore threaten to alter the balance of individual privacy and law enforcement activity that was established in Smith. Justices Stewart's and Marshall's dissenting opinions may point the way to the adaptation that is necessary. Given the far greater substantive content that may be derived from the Carnivore pen register function, surveillance conducted with this function may be considered searches, and therefore require further authorization.
The existing statutory scheme for the interception of wire and electronic communications contained in the Electronic Communications Privacy Act (ECPA) provides a proven framework of checks and balances between the competing interests of individual privacy protection as developed in Fourth Amendment jurisprudence and the ability of law enforcement to effectively investigate and pursue criminal activity.
The terms of the ECPA are readily applicable to Carnivore. Although there are technical differences between Carnivore and telephonic surveillance devices, Carnivore represents the Internet equivalent to telephone surveillance devices. Both are equipped to intercept content and non-content elements of communications. Therefore, the overarching rationale federal courts have relied upon in considering telephonicsurveillance should translate, for the most part, to Carnivore surveillance. A reasonable expectation of privacy should veil the content of e-mail transmissions in the same way the content of telephone conversations has been protected. Warrantless interceptions of content-based Internet communications should be impermissible, just as they are with regard to telephone conversations.
However, an adjustment for the Carnivore pen register function will be necessary in order to maintain the balance the ECPA struck between individual privacy and law enforcement activities. Web-site addresses may reveal far greater substantive content than telephone numbers; therefore, the Smith Court's conclusion that dialed telephone numbers are not protected by the Fourth Amendment cannot be applied to Carnivore pen register searches without modification.
Procedurally, the ECPA adequately restricts the interests of federal law enforcement by imposing stringent limits upon the scope and the logistics of a surveillance effort. The strict interpretation courts have applied to both warrant orders and surveillance provides an additional layer of protection. The government must demonstrate substantial exigent circumstances before the safeguards against intrusions from over-reaching surveillances will be relaxed.
The Internet and e-mail have become inextricably linked to many elements of life in the United States. Therefore, it is essential to prevent cyberspace from slipping toward the brink of lawlessness, where even the cautious and experienced may fall prey to crime. At the same time, the government's enhanced ability to conduct surveillance of private communication will require that courts heed Justice Brandeis' prescient dissent in Olmstead and apply the Fourth Amendment to new technology so that the balance of individual privacy and law enforcement is maintained.
[FNa1]. J.D. Candidate 2002, Rutgers Law School - Newark. The author would like to thank the staff of the Rutgers Computer & Technology Law Journal for their editorial assistance.
[FN1]. H.R. Rep. No. 103-827, at 9 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, quoted in Michelle Skatoff-Gee, Changing Techologies and the Expectation of Privacy: A Modern Dilemma, 28 Loy. U. Chi. L.J. 189, 204 (1996). The Communications Assistance for Law Enforcement Act of 1994 was passed with the intention of "preserv[ing] the government's ability... to intercept communications involving advanced technologies... while protecting the privacy of communications and without impeding the introduction of new technologies, features, and services." Id.
[FN2]. Janet Kornblum, Carnivore Changes Name, Not Mission, USA Today, Jan. 15, 2001, at 3D. See also, John Schwartz, Armey to Press Opposition to Net Wiretaps, N.Y. Times, June 14, 2001, at C10. The FBI has attempted to defuse the uproar caused by the mere name "Carnivore." Citing the "harsh" connotations inspired by the name, the FBI has officially changed the name, "but not the mission" of an upgraded version of the device. "Regardless of the name, Carnivore's aim remains the same - to locate and read e-mail of people targeted by court-ordered investigations." Id.
[FN5]. Qaisar Alam, Carnivore Cornered, Computers Today, Oct. 31, 2000, at 48.
[FN7]. ACLU, In Unique Tactic, ACLU Seeks FBI Computer Code On 'Carnivore' and Other Cybersnoop Programs, at www.aclu.org/news/2000/n071400a.html (Jul. 14, 2001).
[FN8]. Staff editorial, Thought Police Online, Daily Texan, Aug. 28, 2000, at 1.
[FN9]. James H. Johnston, Sniffing Out Criminals Through E-Mail, N.J. L. J., Nov. 13, 2000, at 37.
[FN10]. Epic Gets First Set of FBI's "Carnivore" Documents, Online Newsletter, Nov. 1, 2000. [hereinafter Online Newsletter]. Again, the ACLU harshly criticized the federal government's selections as evasive, "saying that many [of the reviewers] have ties to federal enforcement agencies and the White House." Id. Furthermore, James Dempsey asserts that "[t]he 'independent review' commissioned by the Department of Justice is so circumscribed and controlled by the Justice Department and the FBI that it holds little promise of giving Congress, industry or the public reliable answers." James Dempsey, Does Carnivore Go Too Far? Privacy-invading 'Black Box' or Necessary Law Enforcement Tool? Both Sides Have Their Say, Network World, Oct. 30, 2000, at 73.
[FN11]. Online Newsletter, supra note 10 .
[FN12]. See Online Newsletter, supra note 10. See also Electronic Privacy Information Center website, Carnivore page at http://www.epic.org/privacy/foia_ documents.html. (containing declassified FBI documents) (last visited Feb. 15, 2001).
[FN13]. Online Newsletter, supra note 10 .
[FN15]. See Electronic Privacy Information Center website, Carnivore page at http://www.epic.org/privacy/foia_documents.html. (containing declassified FBI documents) (last visited Feb. 15, 2001).
[FN16]. Alam, supra note 5.
[FN17]. James H. Johnston also expresses concern that Carnivore has such a pervasive reach, that a "rogue FBI agent" may inflict vast harm by "persuad [ing] a judge to issue an overly broad Carnivore warrant" or by "go[ing] beyond the limits" of an honestly obtained warrant. Johnston, supra note 9, at 37, 41.
[FN18]. Donna Howell, Security and Privacy Studies Set to Flesh Out FBI's "Carnivore," Investor's Bus. Daily, Aug. 28, 2000, at A8.
[FN20]. The FBI also has attempted to clear the air concerning the nomenclature "Carnivore." While many commentators have remarked that Carnivore's name alone is ominous, particularly in the light of its function (and perhaps even to the point of being inappropriate), the FBI asserts that the application was so named to mean "that Carnivore would gather only the 'meat of the matter." ' Kornblum, supra note 2 (quoting Larry Parkinson, chief counsel to the FBI).
[FN21]. "The FBI and Department of Justice... have stated their belief that Carnivore is necessary to combat terrorism, espionage, information warfare, child pornography, serious fraud, and other felonies." IIT Research Institute, Independent Review of the Carnivore System, Final Report, 1-1 (2000), available at http://www.usdoj.gov/jmd/publications/carniv_final.pdf. [hereinafter Independent Review].
[FN22]. See Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093, 1097-98 (1996). Adler envisions hypothetical dragnet searches by governmental investigative agencies of material stored on hard drives in which:
[H]ard drives [would be] searched without [individual's] permission and without any particularized cause to believe them guilty, and the search scans through a vast amount of very personal information located within people's offices and homes. At the same time, however, the search has a minimal impact on property, produces no false positives, need not be noticeable, and reveals nothing to officials beyond the identity of some individuals who possess this particular piece of digital contraband. Id. at 1100.
Adler's commentary is strikingly prescient: while Carnivore is not believed to be able to tap into a private computers' hard drives, it can conduct searches of a magnitude similar to that which Adler describes among data transmitted over the Internet.
[FN23]. James H. Johnston summarizes some the common concerns surrounding Carnivore:
First, what exactly does the software do? Does it read only the headers of e-mails or does it read the entire message? What prevents it from searching the content of all e-mails for keywords like 'overthrow the government,' and reporting the authors to the FBI? Does Carnivore scan not only e-mail but also everything a suspect does online, including the Web sites he visits?
Johnston, supra note 6, at 41.
[FN24]. Dempsey, supra note 109.
[FN25]. See Digital Privacy and the FBI's Carnivore Internet Surveillance Program: Hearing of the S. Judiciary Comm., 106th Cong. (2000) [hereinafter Hearing] (statement of Donald Kerr, Assistant Director, FBI). More specifically, Kerr explained that Carnivore uses filters to sift through "addressing information." The first filtering stage "look[s] for the Internet addresses that are covered in the court order. And it picks off the packets that meet that test." After the investigating agency has determined that the address satisfies the court order, a packet would "go through [a] subsequent filtering stage. If full content is allowed, it of course captures all of the packets relating to that message and records them in their digital form." Id. Kerr goes on to explain that a message captured in digital form is restored to text "only... when the content is authorized after recovering the recorded byte and bringing it back to our laboratory to recover the actual content of the message." Id.
[FN26]. Johnston, supra note 6. See also, Hearing, supra note 21 (statement of Senator Patrick Leahy). Carnivore's critics also object to its use of so- called "sealed boxes" installed in the operations centers of Internet services providers, which monitor network traffic. 7 Days-Carnivore May Eat into Web Confidence, Computing, Aug. 31, 2000, at 12. The service providers themselves "have no control over the box, and thus no way of ensuring the privacy of their customers." Id. United States Assistant Attorney General Kevin DiGregory asserts that Carnivore's reach is limited:
Carnivore is, in essence, a special filtering tool that can gather the information authorized by court order, and only that information.... It permits law enforcement, for example, to gather only the email addresses of those persons with whom the drug dealer is communicating, without allowing any human being, either from law enforcement or the service provider, to view private information outside of the court's order.
Id. There is definitive evidence that technology able to perform the types of searches Carnivore is believed to be capable of has been developed and implemented by at least one network management software company. Id. Proponents of Carnivore's use note that while Carnivore, itself, is an innovation, the practice of searching electronic communications to and from certain e-mail addresses is not a novel idea. In fact, before Carnivore's advent, "the FBI obtained warrants that ordered the ISP itself to perform the function." See Johnston, supra note 9, at 37.
[FN27]. H.R. Rep. No. 103-827, at 9 (1994), reprinted in 1994 U.S.C.C.A.N. 3489. See also, Hearing, supra note 25 (statements of Senator Patrick Leahy and Donald M. Kerr, Assistant Director, FBI).
[FN28]. Alam, supra note 5, at 48.
[FN29]. See Online Newsletter, supra note 10; see also, supra note 3. ACLU Associate Director Barry Steinhardt asserts that his greatest fear is the ability of Carnivore to "give the FBI access to all traffic over the [Internet Service Provider's] network, not just the communications to or from a particular target." This feature distinguishes Carnivore from telephonic monitoring devices. See supra note 8 and accompanying text.
[FN30]. Alam, supra note 5, at 48.
[FN31]. See Online Newsletter, supra note 10. Carnivore, is the Internet equivalent of telephone traces and wiretaps. "However, there is no law that prevents information from working its way into FBI files once the Carnivore warrant has picked it up." Id.
[FN33]. Independent Review, supra note 21, at 3-5. Carnivore, by itself, does not have the ability to decrypt encrypted messages. However, an agent may use additional software to decrypt such information. See id. Carnivore, therefore, depends heavily upon human judgment in order for the required "minimization" of the surveillance results to be carried out. A similar process of minimization occurs in wiretap collections as well. In telephonic surveillance, however, the monitoring law enforcement official determines whether to allow the tap to continue recording a conversation by listening to it in real time. See, e.g., Katz v. United States, 389 U.S. 347, 354 (1967). With Carnivore, conversely, the collection has already taken place. An agent must decide whether to discard or retain the information. See infra notes 113-128 and accompanying text for additional discussion of law regarding minimization.
[FN34]. Infra notes 132-142 and accompanying text for a discussion of the flaws of this nomenclature.
[FN35]. Independent Review, supra note 21, at 3-24.
[FN36]. Id. at 3-24 to 3-25.
[FN37]. Id. at 3-25.
[FN40]. Id. at 3-26.
[FN41]. Id. at 3-27.
[FN42]. Id. at 3-28.
[FN47]. See generally, Independent Review, supra note 21, at part 3.
[FN48]. Dempsey, supra note 10.
[FN49]. Dempsey, supra note 10. Although Dempsey expresses several legitimate concerns, it is not clear that the government has any less leeway in ordinary telephone taps. The Communications Assistance for Law Enforcement Act of 1994 ("CALEA") requires:
[T]hat wireline, cellular, and Personal Communications Services (PCS)... are to be capable of: (1) quickly obtaining, for government use, specific communications pursuant to a court order; (2) quickly allowing the government access to 'call-identifying information that is reasonably available;' (3) delivering the intercepted communications and call-identifying information to the government; and (4) providing the previous functions without interference to telecommunication services and preventing unauthorized interceptions.
See Michael A. Rosow, Note, Is 'Big Brother' Listening? A Critical Analysis of New Rules Permitting Law Enforcement Agencies to Use Dialed Digit Extraction, 84 Minn. L. Rev. 1051, 1061 (2000) (quoting 47 U.S.C. 1002(a)(1)-(4)).
[FN50]. Dempsey, supra note 10.
[FN52]. See Alam, supra note 5, at 48. EtherPeek is a packet sniffer program that was developed and is now sold by A.G. Group, Inc. The technology used in EtherPeek produces results similar to those Carnivore is believed to be capable of producing. EtherPeek is used to monitor errors, and to help network analysts "troubleshoot and debug." Id. "By monitoring, filtering, decoding, and displaying packet data, EtherPeek can pinpoint protocol errors and detect network problems such as unauthorised [sic] nodes, misconfigured routes, excess error rates, and unreachable devices." Id. However, it is another application, known as "EtherHelp," which works in conjunction with EtherPeek, that most closely resembles Carnivore's ability to search the content of Internet transmissions. See id. EtherHelp "works, as per A.G. Group, 'by capturing all network traffic, or a specified portion of that traffic, in the form of packets." ' EtherHelp also uses devices called filters and triggers. Both devices were named to describe their function: a filter can be used to "limit the packets captured to those that meet specific criteria," while a trigger activates the capture application only when a "specific type of packet is present." Id.
[FN54]. See Hearing, supra note 25, at 15-16 (comments of Kevin DiGregory). DiGregory notes that "[m]any of the crimes that we confront every day in the physical world are beginning to appear in the online world. Crimes like death threats, extortion, fraud, identity theft and child pornography are migrating to the Internet." DiGregory, however, is cognizant of the need for an acceptable balance between law enforcement and privacy interests:
If law enforcement fails properly to respect individual privacy in its investigative techniques, the public's confidence in government will be eroded, evidence will be suppressed, and criminals will elude successful prosecution.
If law enforcement is too timid in responding to cybercrime, however, we will, in effect, render cyberspace a safe haven for criminals and terrorists to communicate and carry out crime, without fear of authorized government surveillance. If we fail to make the Internet safe, people's confidence in using the Internet and in e-commerce will decline, endangering those very benefits brought about by the information age.
Id. at 16.
[FN60]. In its reasoning, the Olmstead Court followed the strict construction of the Fourth Amendment it had developed in Carroll v. United States. See id. at 464-65 (construing Carroll v. United States, 277 U.S. 132, 149 (1925)).
[FN61]. See Richard S. Julie, Note, High Tech Surveillance Tools and the Fourth Amendment: Reasonable Expectations of Privacy in the Technological Age, 37 Am. Crim. L. Rev. 127, 129 (2000) (discussing the use of the theory of "property-based literalism" to interpret the Fourth Amendment).
[FN63]. See Olmstead, 277 U.S. at 473 (Brandeis, J., dissenting). "In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy of power." Id.
Furthermore, and with even more foresight, Justice Brandeis writes:
The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.
Id. at 474.
[FN64]. Id. at 478.
They [the makers of our Constitution] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Id. Not only does Brandeis elevate the "right to be let alone" to the echelon of rights to be guarded most zealously, he asserts that it would be
[B]etter that a few criminals escape than that the privacies of life of all the people be exposed to the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts.
Id. at 479 n.12.
[FN68]. Id. at 353. As an intermediate step between Olmstead and Katz, the Court referred to its reasoning in United States v. Silverman, 365 U.S. 505 (1961), and concluded that "the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any 'technical trespass... under local property law." ' Id. (quoting Silverman, 365 U.S. at 511).
[FN69]. Id. at 351. Writing for the Court, Justice Stewart began to delineate the reasonable expectation of privacy standard, expanded upon in Justice Harlan's concurring opinion: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected." Id. at 351-52 (citation omitted).
[FN71]. See, e.g., Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding that an individual could not reasonably expect to maintain the privacy of information gathered with "trap and trace" and "pen register" devices installed upon his telephone).
[FN72]. See Skatoff-Gee, supra note 1, at 196 (citations omitted). Louis Seidman also believes that an important consideration in current Fourth Amendment law "focuses on what might be called the 'collateral damage' imposed by searches. Collateral damage includes the involuntary disclosure of personal information not relevant to the investigation, as well as the 'violence, disruption, and humiliation' implicit in any search." Michael Adler, Note, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093, 1103 (1996) (quoting Louis Michael Seidman, The Problem with Privacy's Problem, 93 Mich. L. Rev. 1079, 1086-87 (1995)). There is a great potential for serious harm to be inflicted by such searches including "interfer[ence] with legitimate activity, disrupt[ion of] personal belongings, and discover[y] of personal details that they have no right to learn." Id. at 1105 .
[FN74]. See 18 U.S.C. § 2510. "An individual pursuing a claim for illegally intercepting an oral conversation must show that: (1) under the subjective prong they did not suspect their conversation to be subject to interception; and (2) under the objective prong, that expectation was justified by the circumstances." Skatoff-Gee, supra note 1, at 200-01.
[FN77]. Skatoff-Gee, supra note 1, at 201.
[W]hoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided....
[FN81]. Skatoff-Gee, supra note 1, at n.89; S. Rep. No. 99-541 (1986).
[FN82]. Independent Review, supra note 21, at 3-3.
[FN83]. Id. See also, infra notes 130-144, and accompanying text for a more complete discussion of pen register law as it relates to Carnivore.
[FN84]. Supra note 82, at 3-3 and 3-4.
[FN85]. Id. at 3-1. S ee also 18 U.S.C. § 2516(1) (1968). The officials who may act in this capacity specified in the Independent Review include the Attorney General, Deputy Attorney General, Associate Attorney General, "and certain others designated by the Attorney General." The rationale underlying this policy is to "ensure a measure of internal review and deliberation prior to any wiretap." Independent Review, supra note 21, at 3-1.
[FN86]. Independent Review, supra note 21, at 3-1; see also 18 U.S.C. § 2516(3) (1968). This restriction is tempered even further by a clause that Carnivore is to be put to use only in "those felonies serious enough to warrant the resources." Independent Review, supra note 21, at 3-1.
[FN89]. Independent Review, supra note 21, at 3-1; see also 18 U.S.C. § 2518(1) (1968). This requirement imposes heavy limitations upon Carnivore. While Carnivore is allegedly technically capable of conducting searches throughout electronic transmissions for key words, the degree of specificity required in the order should effectively eliminate this concern.
[FN90]. Independent Review, supra note 21, at 3-1 (quoting 18 U.S.C. § 2518(5) (1968); see also 18 U.S.C. § 2518(5) (1968). It should be noted that 18 U.S.C. § 2518(7) allows for the "circumvention" of any of these requirements in certain situations. "If a law enforcement official designated by the Attorney General determines that an emergency situation exists in which the national security is compromised or there is an 'immediate danger of death or serious physical injury,' the interception can proceed with notice to the court within the next 48 hours." Independent Review, supra note 21, at 3-2 (citing 18 U.S.C. § 2518(7) (1968)).
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
[FN92]. See infra notes 94-102 and accompanying text.
[FN93]. See infra notes 106-109 and accompanying text.
[FN97]. Chavez, 416 U.S. at 579. The Court found that a "misidentification, by itself, will not render interceptions conducted under the order 'unlawful' within the meaning of § 2518(10)(a)(i)." However, it concluded that the misidentification had been cured by "substantial compliance with Title III requirements," in that the Attorney General had, in fact, authorized the order. Id. at 569 n.2.
[FN98]. Id. at 580. "[W]e also deem it appropriate to suggest that strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought." Id.
[FN99]. "'This provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen."' Chavez, 416 U.S. at 590 (Douglas, J., dissenting) (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968)).
[FN101]. 18 U.S.C. § 2519 requires periodic reporting by judges who have issued or denied orders for interceptions, and also by the Attorney General, or assistants to the Attorney General to the Administrative Office of the United States Courts on a number of statistics relating to the issuance of order and the results thereof, including trials, motions to suppress, and convictions arising out of interceptions. Subsection (3) provides that the Director of the Administrative Office of the United States Courts then "transmit to the Congress a full and complete report" on the numbers and results of the applications for interceptions during the preceding year. Id.
[FN103]. See 18 U.S.C. § 2516(1)(a)-(o). See also 18 U.S.C. § 2518(1)(b)(i) which requires that each application include "a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed." Id.
[FN104]. See United States v. D'Aquila, 719 F. Supp. 98, 105 (D. Conn. 1989) (in which the District Court recognized that "the virtual certainty that [the defendants'] criminal business depended upon routine use of the telephone made eavesdropping a 'particularly appropriate' method for the investigation"). See also, e.g., United States v. United States Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 310 n.9 (1972). The Court discusses the "congressional recognition of the importance of [electronic] surveillance in combating various types of crime." For example, organized crime was considered to be among the areas of criminal activity most effectively targeted by electronic surveillance methods. President Lyndon Johnson's "Crime Commission" "maintain[ed] these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them ...." Id. The nature of the planning of the criminal activity made electronic surveillance a particularly useful tool to combat this type of crime.
[FN105]. See Skatoff-Gee, supra note 1, at 189-90.
[FN107]. See id. at 322-23. The Court "recognize[d] that domestic security surveillance may involve different policy and practical considerations from the surveillance of 'ordinary crime," ' but quoted the Court in Camara v. Municipal Court, 387 U.S. 523, 534-535 (1967), to assert that "'[i]n cases in which the Fourth Amendment requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness."'
[FN108]. See id. at 325 (Douglas, J., concurring). Continuing in a tone that foreshadows the concerns of privacy advocates in the face of Carnivore, Justice Douglas refers to Senator Edward Kennedy of Massachusetts, who argued that:
[T]he Government's revelations [on the broad swath of surveillance] posed 'the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time.' Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the Government's data bank.
Id. at 325-26 .
[FN110]. Id. at 314.
[FN111]. United States Dist. Court for the E. Dist. of Mich., 407 U.S. at 324-325 (Douglas, J., concurring) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)).
[FN112]. Independent Review, supra note 21, at 3-3.
[FN113]. See, e.g., United States v. D'Aquila, 719 F. Supp. 98 (D. Conn. 1998). The "'full and complete statement' why normal investigative procedures were not sufficient" is deemed to be necessary "'to assure that wiretapping is not resorted to in situation[s] where traditional investigative techniques would suffice to expose the crime."' I d. at 103 (quoting 18 U.S.C. § 2518(1)(c)) (also quoting United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)).
[FN114]. See United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975) (explaining that the government does not have to show to a certainty that traditional investigative techniques will fail).
[FN118]. See Independent Review, supra note 21, at 3-4.
[FN119]. See id.
[FN120]. See id. at 3-5.
[FN127]. See, e.g., United States v. Sisca, 361 F.Supp. 735 (S.D.N.Y. 1973), aff'd. 503 F.2d 1337 (N.Y.2d), cert. denied, 419 U.S. 878, and cert. denied, 419 U.S. 1008. (in which the Court for the Southern District of New York found that the minimization was not satisfied when all calls were intercepted, wiretaps were never shut off, and calls that were intercepted included a substantial number of non-pertinent conversations). Compare Scott, 436 U.S. at 141, in which the Supreme Court noted that under some circumstances, "it may not be unreasonable to intercept almost every short conversation because the determination of relevancy cannot be made before the call is completed." The Scott Court found it "important to consider the circumstances of the wiretap. For example, when the investigation is focusing on what is thought to be a widespread conspiracy, more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise." Id. at 140.
[FN130]. United States v. Tortorello, 480 F.2d 764, 784 (2d Cir. 1973) (emphasis added).
[FN133]. See e.g., Denisio, 360 F. Supp. 715 (finding no implication of an abuse of discretion in admitting evidence collected in a wiretap that continued twenty-three days beyond the date the surveillance was supposed to end).
[FN134]. United States v. Cox, 567 F.2d 930, 933 (10th Cir. 1977). See also U.S. Dist. Ct. for the E. Dist. of Mich., 407 U.S. at 310 n.9. Complex criminal activity is given greater leeway when the limitations on the scope of the surveillance are established. The Court notes that President Lyndon Johnson's "Crime Commission" asserted that "'the great majority of law enforcement officials believe that the evidence necessary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques." ' (quoting Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 201 (1967)). Because of the complex and layered webs frequently present in certain categories of criminal activity such as organized crime, law enforcement officials have advocated far less restrictive measures in surveillance orders.
[FN135]. See, e.g., Katz v. United States, 389 U.S. 347, 364 (1967) (Black, J., dissenting). Justice Black expresses a twofold objection: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order 'to bring it into harmony with the times' and thus reach a result that many people believe to be desirable." Id. See also, e.g., Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 Duke L.J. 727 (1993) (evaluating the Supreme Court's conclusions about expectations of privacy in light of prevailing public sentiment regarding such expectations).
[FN136]. See Katz v. United States, 389 U.S. 347, 365-66 (1967) (Black, J., dissenting).
[FN145]. While the Katz Court asserted that the Fourth Amendment does not contain a "general constitutional 'right to privacy," ' its holding "requires that certain privacy interests of the individual not be invaded by the government except under certain conditions." Katz, 389 U.S. at 350. See also C. Ryan Reetz, Note, Warrant Requirement For Searches of Computerized Information, 67 B.U. L. Rev. 179, 181-83 (1987).
[He] doubt[s] there are any [private telephone subscribers] who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called.
[FN154]. Compare Independent Review, supra note 21, and United States v. Falcone, 505 F.2d 478, 482-83 (3d Cir. 1974). A cursory examination of the pen register function of Carnivore and a telephone pen register seems toindicate the dissimilarity in the way they actually operate. Yet thefunction and purpose of these devices are fundamentally the same. Theonly substantial difference is that the pen register function ofCarnivore is merely another of several possible configurations of theCarnivore system, while a telephone pen register is a device with asingle, limited function.
[FN155]. United States v. Cox, 567 F.2d 930, 933 (10th Cir. 1977) (citing United States v. Falcone, 505 F.2d 478 (3d Cir. 1974) and United States v. Iannelli, 430 F.Supp. 151 (W.D. Pa. 1977)). "When used in conjunction with a wiretap, we conclude that an order permitting interception under Title III for a wiretap provides sufficient authorization for the use of a pen register, and no separate order for the latter is necessary." Falcone, at 482.
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