Bill Addresses E-mail Surveillance

Thursday, July 27th 2000, 12:00 am
By: News On 6

WASHINGTON (AP) — A move is under way in Congress to increase the burden on federal law enforcement agencies to justify monitoring people's e-mail messages and other communications.

Rep. Bob Barr confirmed that he and his staff are at work on a bill that would rein in the FBI's new ``Carnivore'' surveillance system and place additional restrictions on telephone wiretaps as well.

Barr, R-Ga., said he was concerned about computer eavesdropping capability before attending a hearing on Capitol Hill earlier this week, and he said he ``came out of it scared.''

Privacy advocates and computer experts called Carnivore a ``black box'' in testimony Monday, and said only the FBI knows what it truly does. They also contended that information the FBI gets from the device, installed at a suspect's Internet service provider, is far more than what could be gleaned from a telephone wiretap and statutes governing telephone surveillance are being misused.

In a telephone ``trap-and-trace'' or ``pen register'' wiretap, authorities can get a list of phone calls made to and from a certain telephone number. The usable information is limited to the 10-digit telephone numbers and the time of the call, and the phone company, when given a court order, provides the information.

Current laws and judicial precedent say that the numbers a person dials are not private communications, and therefore authorities do not need to show that a crime has been committed.

With Carnivore, that statute is being extended to the Internet world.

The details of Barr's bill aren't clear yet, but he said it would address the issue of translating telephone wiretap law to the Internet by designing strict constraints for monitoring the medium. It would also make sure that evidence gained from an e-mail tap would not yield more information than a similar court order for a telephone tap.

The FBI's new surveillance mechanism sits at the subject's ISP and scans the addressing information coming from or going to the suspect's computer. This can reveal far more information than a simple e-mail address, such as a subject line describing the contents of the message.

``Capturing Internet origin and destination address instead of 'numbers dialed' could create a much more intrusive form of surveillance that is not clearly supported by law,'' said Alan B. Davidson, staff counsel at the Center for Democracy and Technology.

For authorities to be able to request e-mail contents they must show probable cause and obtain a search warrant. The same is true for listening in on a telephone call.

Regarding the inner workings of Carnivore, the FBI is resisting a Freedom of Information Act request by the American Civil Liberties Union for Carnivore's computer code, but said it will submit to an external review.

Since the Carnivore computer, devoid of keyboard and mouse, sits at the suspect's ISP and is locked down from any manipulation from non-FBI personnel, Internet providers have bristled at the idea of letting it sit on their networks.

Donald M. Kerr, assistant director of the bureau's laboratory division, said in an interview that the FBI would love to have the ISP provide the information authorities need, but the cost and technical knowledge can be prohibitive for small Internet companies.

Peter William Sachs, a lawyer and president of ICONN, a small Internet provider in Connecticut, said the job could be done with two lines of computer code, and called it a ``trivial'' task.

Barr concurred, saying ``I'm not satisfied with the FBI's explanation.''

But he will have a stiff challenge in keeping apace of the changes in technology.

Not only can Carnivore monitor e-mails, Kerr said, but it also can monitor Web browsing, chat rooms and all sorts of other communications.

However, it is the FBI's argument that although Carnivore can read those things, it's a difference between ``capability and authorization,'' Kerr said.

``People seem to conjure up this vision that FBI personnel are unsupervised and unconstrained in the use of these tools,'' he said. ``To misuse these authorities and to go outside the scope of the court order is to commit a federal felony. It's, to me, not conceivable that groups of our employees would run that kind of risk in doing their job.''

Kerr again noted a separate audit trail maintained by Carnivore that keeps track of its activity and configuration, and said that trail is an extra safeguard against misuse.

Barr said he expects resistance from other legislators, even from other Republicans, but said he will not let the FBI go unchecked.

``They want to just go out and rely on scaring people to death, that if they don't get this authority, the terrorists will take over the country, and say 'we're out to save the world,' '' Barr said.