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IP: House hearing on FBI's "Carnivore" : Risks Digest 20.97
From: Dave Farber <farber () cis upenn edu>
Date: Sat, 29 Jul 2000 08:12:36 -0400
Date: Wed, 26 Jul 2000 23:04:40 -0400 From: Alan Davidson <abd () cdt org> Subject: House hearing on FBI's "Carnivore" [Written by Lina Tilman <ltilman () cdtmail org>] Oversight Hearing on Fourth Amendment Issues Raised by FBI's "Carnivore" Program Subcommittee on the Constitution, House Committee on the Judiciary Monday, July 24, 2000, 1:00 p.m. Chairman Canady opened the hearing by introducing the Carnivore system as one that "isolates, intercepts and collects" information that passes through an ISP. Canady expressed hope that evaluations of the system would be based on facts instead of "irrational fears and suspicions". Canady concluded by acknowledging the potential for abuse of the system as a significant concern. Rep. Watt briefly addressed his concern regarding Big Brother in general and the government's ability to invade citizens' privacy in particular. Watt acknowledged that such ability has been enhanced by advancements in information and communication technologies. Rep. Hyde first noted the legitimate need of the law enforcement to access information required for criminal investigations. Hyde then described the tension between such necessary access and the citizens' right to the "valuable commodity" of privacy. Rep. Conyers introduced a number of questions as part of his inquiry into Carnivore's ability to "bite more than it can chew". Conyers first noted his concern regarding the applicability of the pen register authority, under which Carnivore collects transactional electronic data, to the online environment. Conyers' other concerns included the FBI's refusal to allow ISPs themselves to deliver the necessary information once a lawful order is obtained. Rep. Hutchinson stated that while Carnivore appeared to be a minimization tool, there exist legitimate questions regarding its application. Concerns include proper monitoring of Carnivore's collection and filtering of e-mail communication. Hutchinson mentioned the Privacy Commission bill, which he co-sponsors with Rep. Moran, as an attempt to establish a body of experts who would, among other things, examine the data collection practices of law enforcement to determine whether they violate the privacy rights of the U.S. citizens. Rep. Bachus stated that in Carnivore's case, technology appears to have "outrun the law". Bachus expressed his suspicion that criminals would easily evade the system and it would exclusively monitor the communications of law abiding citizens. Bachus further expressed his concern regarding illegitimate access to confidential files within agencies such as the FBI. The first panel consisted of Dr. Donald Kerr, FBI lab director, Larry Parkinson, FBI General Counsel, Kevin DiGregory, DOJ and David Green, DOJ. Dr. Kerr introduced FBI's Carnivore as a tool, analogous to a "packet sniffer", of lawful interception of criminal communication. After being installed on a network pursuant to a court order, Carnivore collects the transactional information of its targets' e-mails; its configuration and filter settings depend on the specifics of the court order. Carnivore conducts neither broad searches nor long-term surveillance; instead, it filters out all content information and stores only the non-content "to" and "from" lines of targeted communication. Carnivore is passive on the network and is used only by a technical team of the law enforcement; in its two years of existence, it has been used very infrequently and narrowly. Dr. Kerr concluded by stating that the FBI presently plans an independent review of the system by industry and academic experts. Mr. Parkinson testified that Carnivore is a minimization tool that operates under substantial oversight. Mr. DiGregory, in turn, argued that Carnivore is equivalent to other simple investigative tools that law enforcement uses offline. Chairman Canady asked whether Carnivore captures the URLs of communications with Web sites. The panelists answered that it does not, unless a URL is included in the transactional information of an e-mail. Rep. Watt appeared upset that independent review was scheduled after Carnivore has been in use for two years. A number of Members expressed distrust regarding the law enforcement's use of Carnivore under described limitations. Rep. Hutchinson asked whether the FBI has ever captured content that it then had to filter out. The panelists answered that it has not. Panelists noted that in addition to restrictions and specifications that limit data collection prior to Carnivore's activation, there exist safeguards on law enforcement's use of collected data when it is first examined and, later, at trial. The second panel consisted of Barry Steinhardt, ACLU, Alan Davidson, CDT, Tom Perrine, Pacific Institute for Computer Security, Robert Corn-Revere, Hogan & Hartson, Matt Blaze, AT&T Labs, Stewart Baker, Steptoe & Johnson, and William Sachs, ICONN. Mr. Steinhardt stated that Carnivore is an unprecedented maximization tool that has the potential to access all communications that pass through an ISP. Mr. Steinhardt analogized Carnivore to a digital wiretap, expressing concern that its broad access is inconsistent with restrictions set by the Fourth Amendment and the ECPA. Mr. Steinhardt noted that the FBI has a "checkered past" with regards to First and Fourth Amendment violations. Mr. Davidson addressed the differences between transactional data in the on- and off-line environments, noting that off-line Fourth Amendment protections do not neatly translate into online communications. Davidson showed a series of slides that displayed sample packets that Carnivore could obtain; he argued that "non-content" data that Carnivore currently accesses under a pen register or trap and trace authorization reveal a great amount the actual content of a target's communication. Davidson argued that Congress must increase statutory protections for electronic communications, raising the Carnivore authorization standard from relevant to probable cause. Mr. Perrine noted that Carnivore is technically capable of monitoring all traffic that passes through the network. Mr. Perrine spoke about the inapplicability of telephony concepts to the online environment. He stated that the FBI's use of Carnivore lacks accountability, noting that it is impossible to monitor the system or keep track of its configurations or filters without the knowledge of its source code. Mr. Perrine argued that Carnivore represents a threat to privacy that is protected under original wiretap legislation. Mr. Corn-Revere argued against a number of points brought up by government witnesses on the first panel. Mr. Corn-Revere appeared skeptical that the FBI would use Carnivore's capabilities in limited ways that protect individuals' privacy. He noted disconcerting implications inherent in the system's ability to switch its level of surveillance. In conclusion, Mr. Corn-Revere stated that there presently exists no way to ensure accountability of FBI's use of Carnivore. Mr. Blaze argued that while the FBI operates with good intentions, it is difficult to ensure that Carnivore operates as intended. The system may inadequately filter, target the wrong individual or extract pieces of communication out of context. Mr. Blaze noted that large-scale systems such as Carnivore are problematic and tend to fail silently -- without operators' knowledge -- due to bugs, vulnerabilities and mistakes. Mr. Blaze argued that widespread publication of Carnivore's source code and architecture is the best way to ensure its soundness. [See http://www.crypto.com/papers/openwiretap.html; PGN] Mr. Baker stated that communication concepts from the telephony world do not apply to electronic communication. Mr. Baker argued that it is "crazy" and "bizarre" not to acknowledge that there exists a reasonable expectation of privacy in the content-revealing "to" and "from" lines of an e-mail. He urged the Members to institute a notice requirement when a system such as Carnivore monitors e-mail communications. Mr. Sachs testified that ISPs are capable of providing the FBI with requested communications when a lawful order exists. He noted that Carnivore represents the most intrusive method of obtaining transactional data of e-mail messages. Mr. Sachs acknowledged that albeit technically feasible, such monitoring by an ISP discourages free online communication, protected by the First Amendment, and slows down network traffic. During the Q&A period, Davidson noted that little is known about Carnivore's precise capabilities and functions. Rep. Watt expressed concern that currently available Carnivore-like electronic surveillance systems allow anyone to monitor online traffic. Panelists noted that there exists an a-priori legal issue with the FBI's installation of Carnivore -- in the telephony world, the FBI would not be able to install, on a telephone service provider's network, a device that would monitor all passing communications. Panelists and Members appeared to agree that there must exist a notice requirement; presently, notice depends on the individual ISPs' policies. Davidson argued that two things must occur: (1) the standard for access to transactional data on the Internet must be raised, and (2) "trap and trace" must be re-defined for the online environment. Mr. Perrine noted that according to the Supreme Court, transactional data may not disclose the target's identity. Mr. Steinhardt observed that the FBI witnesses addressed the use of Carnivore in the e-mail context only; it remains unclear how the system monitors files transferred using other protocols. Furthermore, it is unclear what statutory protections govern such file transfers. Mr. Steinhardt argued that the notion and significance of non-content data has changed since CALEA was adopted, and urged the Members to consider two changes to existing surveillance guidelines: (1) judges should be given discretion in matters of online pen register and trap and trace orders, and (2) the standard for obtaining a pen register and trap and trace must be raised for both the online and the telephony environments. Lina Tilman, Center for Democracy and Technology 1634 Eye St. NW Suite 1100, Washington, DC 20006 202 637 9800 fax 202 637 0968 ltilman () cdtmail org http://www.cdt.org/ [From EPIC Alert 7.14, 27 Jul 2000, http://www.epic.org, I find Testimony presented at the House Judiciary Committee hearing: http://www.house.gov/judiciary/2.htm The hearing can be viewed in its entirety over the web at: http://www.cspan.org/technology_science/ More on the history of FBI monitoring of Internet communications and the "digital telephony" law (or CALEA) is available at the EPIC Wiretap Page: http://www.epic.org/privacy/wiretap/ PGN]
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- IP: House hearing on FBI's "Carnivore" : Risks Digest 20.97 Dave Farber (Jul 29)