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EFFector - Volume 13, Issue 6 - EFF Position on FBI "Carnivore" Snooping System

EFFECTOR

EFFector - Volume 13, Issue 6 - EFF Position on FBI "Carnivore" Snooping System

   EFFector       Vol. 13, No. 6       Aug. 4, 2000       editor@eff.org
                                      
   A Publication of the Electronic Frontier Foundation     ISSN 1062-9424
                                      
  IN THE 154th ISSUE OF EFFECTOR (now with over 24,600 subscribers!):
  
     * EFF Position on FBI "Carnivore" Snooping System
          + EFF's House Judiciary Committee Testimony on Carnivore
          + Carnivore FAQ
     * EFF Welcomes New Board and Staff Members:
          + Prof. Pamela Samuelson, Boardmember
          + Cindy Cohen, Legal Director
          + Lee Tien, Senior Staff Attorney
          + John Marttila, Administrative Assistant
     * EFF Now Accepts PayPal Transactions for Memberships
     * DVD Update Bulletins Available on CAFE-News
     * Administrivia
       
   For more information on EFF activities & alerts: http://www.eff.org
     _________________________________________________________________

   
EFF Position on FBI "Carnivore" Snooping System

   Carnivore is an electronic communications surveillance system created
   by the FBI. It is essentially a PC that runs specialized surveillance
   software, attached to your Internet service provider's network -
   something like an e-mail and Web traffic wiretap. But, due to
   differences between Internet and telephone technologies, Carnivore
   exceeds FBI legal wiretapping authority.
   
  EFF's House Judiciary Committee Testimony on Carnivore
  
                                Statement of
                     The Electronic Frontier Foundation
                                      
                                 before the
                      Subcommittee on the Constitution
                                   of the
                        Committee on the Judiciary,
                  United States House of Representatives:
                                      
                     The Fourth Amendment and Carnivore
                                      
                               July 28, 2000
                                      
   The Electronic Frontier Foundation (EFF) would like to submit comments
   to be included for the record regarding the Fourth Amendment* and the
   issues raised by the FBI's Carnivore system.
   
   EFF is a leading global nonprofit organization linking technical
   architectures with legal frameworks to support the rights of
   individuals in an open society. Founded in 1990, EFF actively
   encourages and challenges industry and government to support free
   expression, privacy, and openness in the information society. EFF is a
   member-supported organization and maintains one of the most-linked-to
   Web sites in the world.
   
   We wish to focus our comments on two specific issues. First, the use
   of pen registers as applied to traditional land-line telephone systems
   are not analogous to packet analyzers, such as Carnivore, that are
   used on the Internet. Second, we will touch on some of the harmful
   societal effects that will most certainly be wrought should the
   Carnivore system be implemented in the manner that the FBI wishes.
   
    The use of packet analyzers on the Internet captures much more information
    from an individual than does the use of pen registers and trap and trace
    devices used on traditional land-line telephone systems.
    
   Pen registers are devices used to record telephone numbers that are
   dialed from a telephone, whereas trap and trace devices are used to
   determine where a telephone call originated. Information gathered in
   this manner is strictly limited to only those phone numbers that are
   made either to or from the target's telephone number. No other
   personal information is harvested from the target of the
   investigation. The contents of the message and the routing or
   addressing information are independent of each other. Law enforcement
   cannot rely on pen registers or trap and trace warrants to get at the
   content of the calls.
   
   In reality, pen registers or trap and trace devices do not exist where
   the Internet is concerned, because the contents of the messages and
   the sender/receiver information are not kept separate. Because of
   this, the potential for law enforcement to over-collect information
   exists, and it is almost a certainty that law enforcement will receive
   more information from individuals than is authorized by a traditional
   pen register or trap and trace warrant. There are several ways that
   this can happen.
   
   When a person makes a telephone call on a traditional telephone
   system, a discrete and continuous segment of the telephone system is
   dedicated to that call, which is handled sequentially. The system
   first accepts the call routing information (dialed number, number and
   accounting information of the phone used to make the call, etc.),
   secondly establishes a connection, and only then opens the line to the
   content side of the call. The routing information remains wholly
   separate and severable from the call content, allowing law enforcement
   easy access to the one but not to the other. The Internet, however is
   a packet-switched network, meaning that when information is sent over
   the Net, it is broken into small packets, routed piecemeal over the
   Net and then reassembled at its final destination. Routing
   information, as well as content, are both contained in each individual
   packet, potentially giving law enforcement access to content as well
   as location routing information.
   
    The Carnivore system appears to exacerbate the over collection of personal
    information by collecting more information than it is legally entitled to
    collect under traditional pen register and trap and trace laws.
    
   The Carnivore system has received a lot of press recently, but the FBI
   has not been forthcoming about how the Carnivore system actually
   works. Civil liberties groups have often been quoted as noting that
   Carnivore is a "black box" leaving us to guess at its inner workings.
   
   We have been able to discover that Carnivore is a packet-sniffer, able
   to gather pen register and trap and trace information by sniffing each
   packet as it is routed along. It then filters out unwanted e-mail and
   other communications information from those of the target. This
   process is problematic for two very important reasons.
   
   First, traditional wiretaps, pen registers and trap and trace devices,
   are attached to specific telephone lines; law enforcement will only
   obtain the telephone numbers associated with the target's phone. With
   Carnivore in place, law enforcement has the potential ability to sift
   through all of the traffic going through a particular Internet Service
   Provider's (ISP) network. This far exceeds the scope of any wiretap
   laws we currently have in place.
   
   Second, analogizing pen register information from a traditional
   land-line phone system to the Internet is incorrect. The Carnivore
   system likely can capture content as well as numbers. E-mail addresses
   for example are personal to an individual rather than to a particular
   household. We don't know for sure, but it is possible that Carnivore
   has access to the subject line information of e-mail messages. Subject
   lines are content. For example, "leaving work at 5pm today - meet me
   at the bus stop", contains a lot of information about travel plans of
   a target on a particular day. Carnivore can also track other content
   information such as the URLs of web sites visited. Seeing the URLs not
   only give routing information but content as well. For example,
   someone visiting www.eff.org could presumably be interested in civil
   liberties issues online.
   
    Systems like Carnivore have the potential to turn into mass surveillance
    systems that will harm our free and open society.
    
   Currently, there is little if any public oversight over the FBI's use
   of its Carnivore system. The FBI has not allowed the ISP to inspect
   the device, nor have any of the advocacy groups been allowed to
   examine it. In fact, the ACLU has had to resort to filing a FOIA
   request to try to get at the source code. Allowing the FBI to install
   and use a device such as this unchecked by any public oversight,
   threatens the openness we enjoy and expect in our society. Robert
   Corn-Revere, in his testimony, noted that his case is sealed. We can't
   even look to that for guidance.
   
   Surveilling the Internet in this way leaves law enforcement with the
   potential to lower an individual's expectation of privacy as they use
   the Internet, particularly if we use the majority rule in Smith v.
   Maryland, that an individual has no legitimate expectation of privacy
   in the numbers that they dial on their telephones. This is so because
   law enforcement has so far successfully argued that pen registers on
   the Internet are analogous to those used on land-line telephone
   systems. Since routing information on the Net contains content, an
   expectation of privacy could end up being lowered for an individual's
   reading habits on the Net. Once individuals realize that they have a
   lowered expectation of privacy on the Net, they may not visit
   particular web sites that they may otherwise have visited.
   
   The Court in Smith v. Maryland noted law enforcement's penchant for
   trying to lower the bar on what is a legitimate expectation of
   privacy. The majority held that:
   
     situations can be imagined, of course, in which Katz' two-pronged
     inquiry would provide an inadequate index of Fourth Amendment
     protection. For example, if the Government were suddenly to
     announce on nationwide television that all homes henceforth would
     be subject to warrantless entry, individuals thereafter might not
     in fact entertain any actual expectation of privacy regarding their
     homes, papers, and effects. ...In such circumstances, where an
     individual's subjective expectations had been "conditioned" by
     influences alien to well-recognized Fourth Amendment freedoms,
     those subjective expectations obviously could play no meaningful
     role in ascertaining what the scope of Fourth Amendment protection
     was. In determining whether a "legitimate expectation of privacy"
     existed in such cases, a normative inquiry would be proper.
     
   In other words, law enforcement cannot "dumb down" society's
   subjective notions of what constitutes a legitimate expectation of
   privacy.
   
    Conclusion
    
   The use of pen registers as applied to traditional land-line telephone
   systems is fundamentally different than information that is collected
   using pen registers on the Internet. Allowing a system such as
   Carnivore to be used unchecked by law enforcement exacerbates the
   problem of over collection of data and has the potential to harm our
   open society.
   
     Respectfully,
     
                                                        Deborah S. Pierce
                                                           Staff Attorney
                                           Electronic Frontier Foundation
                    ___________________________________
   
  Carnivore FAQ
  
   Frequently Asked Questions (FAQ) and Answers about Carnivore
   
    What is Carnivore?
    
   Carnivore is an electronic communications surveillance system created
   by the FBI. It is essentially a personal computer that runs
   specialized surveillance software, attached to your ISP network.
   
    Who can be a target?
    
   Anyone suspected of a host of crimes, and anyone whose communications
   are suspected to be able to provide information that would aid an FBI
   investigation.
   
    What can Carnivore do?
    
   There are two kinds of warrant under which the FBI can monitor
   communications. The more wide-ranging is the Title III warrant, which
   enables the FBI to intercept the actual texts of e-mails. However,
   this kind of warrant is more difficult to obtain.
   
   Carnivore uses the weaker "trap and trace" and "pen register"
   warrants, but in a new and wider way. These warrants were designed for
   the phone system; to trace the number of origin of a phone call or a
   list of the numbers called from a phone. Carnivore uses these warrants
   to intercept the headers of all e-mails on the system, and then
   filters out those not "to" or "from" the surveillance target.
   
   Besides e-mails, Carnivore can also intercept instant-messaging
   systems, visits to Web sites and Internet relay chat sessions.
   
    Is Carnivore legal?
    
   Opinions differ. A recent Order involving Earthlink described by
   Robert Corn-Revere (although he does not reference Earthlink by name)
   in congressional testimony ruled that government agents could compel
   an ISP to install Carnivore; to date this is the only decision on
   public record, and no higher court has yet reviewed the decision.
   
   According to the Electronic Communications Privacy Act, electronic
   surveillance must be conducted in relation to a single person who is
   the target of a surveillance warrant. The problem with Carnivore is
   that it intercepts all messages on the ISP's network before filtering
   out those not from or to the surveillance target.
   
    What's the difference between pen registers and packet analyzers?
    
   Pen registers are devices used to record telephone numbers that are
   dialed from a telephone, whereas trap and trace devices are used to
   determine where a telephone call originated. Information gathered in
   this manner is strictly limited to only those phone numbers that are
   made either to or from the target's telephone number. No other
   personal information is harvested from the target of the
   investigation. The contents of the message and the routing or
   addressing information are independent of each other. Law enforcement
   cannot rely on pen registers or trap and trace warrants to get at the
   content of the calls.
   
   In reality, pen registers or trap and trace devices do not exist where
   the Internet is concerned, because the contents of the messages and
   the sender/receiver information are not kept separate. Because of
   this, the potential for law enforcement to over-collect information
   exists, and it is almost a certainty that law enforcement will receive
   more information from individuals than is authorized by a traditional
   pen register or trap and trace warrant. There are several ways that
   this can happen.
   
   When a person makes a telephone call on a traditional telephone
   system, a discrete and continuous segment of the telephone system is
   dedicated to that call, which is handled sequentially. The system
   first accepts the call routing information (dialed number, number and
   accounting information of the phone used to make the call, etc.),
   secondly establishes a connection, and only then opens the line to the
   content side of the call. The routing information remains wholly
   separate and severable from the call content, allowing law enforcement
   easy access to the one but not to the other. The Internet, however is
   a packet-switched network, meaning that when information is sent over
   the Net, it is broken into small packets, routed piecemeal over the
   Net and then reassembled at its final destination. Routing
   information, as well as content, are both contained in each individual
   packet, potentially giving law enforcement access to content as well
   as location routing information.
   
    So Carnivore is exacerbating the problem of over-collection of personal
    information by law enforcement on the Net, right?
    
   Yes. Because Carnivore is a packet-sniffer, it is able to gather pen
   register and trap and trace information by sniffing each packet as it
   is routed along. It then filters out unwanted e-mail and other
   communications information from those of the target. This process is
   problematic for two very important reasons.
   
   First, traditional wiretaps, pen registers and trap and trace devices,
   are attached to specific telephone lines; law enforcement will only
   obtain the telephone numbers associated with the target's phone. With
   Carnivore in place, law enforcement has the potential ability to sift
   through all of the traffic going through a particular Internet Service
   Provider's (ISP) network. This far exceeds the scope of any wiretap
   laws we currently have in place.
   
   Second, analogizing pen register information from a traditional
   land-line phone system to the Internet is incorrect. The Carnivore
   system likely can capture content as well as numbers. E-mail addresses
   for example are personal to an individual rather than to a particular
   household. We don't know for sure, but it is possible that Carnivore
   has access to the subject line information of e-mail messages. Subject
   lines are content. For example, "leaving work at 5pm today - meet me
   at the bus stop", contains a lot of information about travel plans of
   a target on a particular day. Carnivore can also track other content
   information such as the URLs of web sites visited. Seeing the URLs not
   only give routing information but content as well. For example,
   someone visiting www.eff.org could presumably be interested in civil
   liberties issues online.
   
    What are some of the larger societal effects of allowing a system like
    Carnivore to be put into place unchecked?
    
   Systems like Carnivore have the potential to turn into mass
   surveillance systems that will harm our free and open society.
   
   In addition to the Fourth Amendment and ECPA problems we have
   discussed, there are also potential First Amendment problems. Once
   people begin to realize the scope of the Carnivore system, they may
   begin to self-sensor their own speech so as not to bring their
   communications to the attention of law enforcement.
   
    How does the FBI defend their actions?
    
   The FBI believes that e-mail filtering before interception is not
   technically feasible, and that therefore intercepting unfiltered
   communications is justified. But there is no judicial, press or ISP
   oversight to make sure that the FBI will follow the law. In effect,
   they're simply asking us to trust them: an attitude which, according
   to the ACLU, violates federal wiretapping laws:
   
     "Currently, law enforcement is required to "minimize" its
     interception of non-incriminating communications of a target of a
     wiretap order. Carnivore is not a minimization tool. Instead,
     Carnivore maximizes law enforcement access to the communications of
     non-targets."
     
   The FBI also argues that as they don't see the contents of the e-mails
   they intercept, they are not violating innocent people's privacy. They
   argue that the software only intercepts the "To" and "From" lines of a
   header, never the subject line; but as they refuse publicly to release
   their source code, or to allow ISP oversight of their system, there is
   no way to verify that this is so. They describe Carnivore as a
   "diagnostic tool" with a "surgical" ability which provides "enhanced
   privacy protection", and which can automatically distinguish between
   those materials which are the subject of a lawful order and which are
   not. They also say that internal oversight, coupled with Department of
   Justice and Court jurisdiction, constitutes sufficient oversight to
   prevent not only abuse but also even the possibility of abuse.
   
    EFF's views on Carnivore
    
   Whether filtering before interception is feasible or not, Carnivore
   violates the ECPA; it also appears to violate the Fourth Amendment,
   and is believed by many to be manifestly illegal. It is a dangerous
   and intrusive tool, the responsible use of which depends solely on the
   good will of the FBI. Consequently, EFF supports the proposal to open
   the source code of Carnivore to public scrutiny, so that it is
   possible to understand more clearly what Carnivore can do, and what
   flaws it has, and EFF in general opposes the continued use of
   Carnivore.
   
     * Footnote: "The 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."     
     _________________________________________________________________
   

EFF Welcomes New Board and Staff Members

  Civil Liberties Group Creates All Star Team
  
   The Electronic Frontier Foundation (EFF) is pleased to announce the
   recent addition of a new board member, Professor Pamela Samuelson, and
   three new members of the staff, Legal Director Cindy Cohn, Senior
   Staff Attorney Lee Tien, and Administrative Assistant John Marttila.
   The expertise of all three prominent attorneys will be an asset to the
   civil liberties group in its continuing fight to protect every
   netizen's online rights, and the addition of John to an increasingly
   busy staff and growing organization will greatly help keep the
   organization running smoothly.
   
   "What an all-star team we've assembled," commented EFF Executive
   Director Shari Steele. "Cindy and Lee were instrumental to our success
   in the Bernstein v. State litigation, which declared source code as
   speech and freed up the U.S. export controls on encryption. And Pam is
   one of the most distinguished intellectual property attorneys in the
   country. EFF is so happy to have these great legal minds join us."
   
   Pamela Samuelson is a Professor of Law and of Information Management
   at the University of California at Berkeley and a world-renowned
   expert on cyberlaw and intellectual property. She is also a Director
   of the Berkeley Center for Law & Technology and provided the endowment
   for the Samuelson Law, Technology and Public Policy Clinic at Boalt
   Hall. She has written and spoken extensively on the challenges that
   digital technologies pose for existing legal regimes, particularly
   intellectual property law, and more recently has become interested in
   legal regulation of digital networked environments. Samuelson was
   named a MacArthur Fellow by the John D. and Catherine T. MacArthur
   Foundation in 1997.
   
   Cindy A. Cohn specializes in Internet-related civil litigation,
   including cases involving free speech, encryption, SPAM, domain names,
   privacy, unfair competition and defamation. In 1997 she was named one
   of California Lawyers of the Year by California Lawyer magazine for
   her work on Internet issues. She is a member of the San Mateo County
   Bar Association and of its legal technology section. Ms. Cohn
   graduated with honors from the University of Iowa and received her law
   degree from the University of Michigan Law School in 1989. Before
   entering private practice, she clerked for the United Nations Centre
   for Human Rights in Geneva, Switzerland.
   
   Lee Tien has practiced law for nine years, specializing in First
   Amendment cases. He was co-counsel to Cindy Cohn on the Bernstein case
   and worked in private practice on cases involving the First Amendment
   and cyberlaw. He has published such articles as "Who's Afraid of
   Anonymous Speech? Mcintyre and the Internet," which appeared in the
   Oregon Law Review (1996), and "Children's Sexuality and the New
   Information Technologies," which appeared in Social and Legal Studies
   (1994). Mr. Tien is a longtime user of technology, and is currently
   co-host of the Legal Conference on the online community at the WELL."
   He received his law degree from University of California at Berkeley
   in 1987 and his undergraduate degree from Stanford University in 1979.
   
   "I was astounded at the dedication Cindy and Lee showed in pursuing a
   difficult case over so many years and against such a powerful
   opponent. They showed they are a force to be reckoned with and our
   legal opponents had better watch out," said Brad Templeton, EFF's
   Board Chairman. "And Pam Samuelson is way ahead of the curve when it
   comes to cyberspace issues and the law. She'll keep EFF on that
   forefront with her."
   
   John Marttila, a long-time associate of EFF staffmembers Robin Gross
   and Patrick Norager, is (when wearing other "hats") a musician,
   conductor, and teacher. His and Patrick's musical projects, including
   UKUSA, may be heard in streaming MP3 format at Radio EFF:
      http://www.eff.org/radioeff
   
   EFF continues to pursue its long-term mission of educating the public,
   policymakers, and courts about the issues that arise when traditional
   expectations conflict with the new worlds created by computers and the
   Internet. The organization remains focused on civil liberties and
   civil responsibilities in cyberspace and continues to offer legal
   advice, referrals, and a large archive of current and historical
   online civil liberties information.
   
   Founded in 1990, the Electronic Frontier Foundation (www.eff.org) is a
   nonprofit organization that actively encourages and challenges
   industry and government to support free expression, privacy, and
   openness in the information society. EFF is a member-supported
   organization and maintains one of the most-linked-to Web sites in the
   world.
   
   For more information on the Electronic Frontier Foundation see:
      http://www.eff.org
   
   For information about joining us in our fight to protect your rights,
   see:
      http://www.eff.org/support
     _________________________________________________________________

   
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   Thank you for your support! Without it, our work on the DVD cases,
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     _________________________________________________________________
   

DVD Update Bulletins Available on CAFE-News

   EFF's Campaign for Audiovisual Free Expression project is defending
   fair use, free speech and open software development from attacks by
   the entertainment industry's intellectual property trade associations
   in a number of precendent-setting legal cases. For those who would
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   EFF-CAFE's DVD cases, we have set up a CAFE-News mailing list.
   Subscribers will get several DVD Update bulletins every week (except
   during major lulls in the litigation), as well as other CAFE-related
   materials from time to time.
   
   Here's full information on the list:
   
    EFF'S CAMPAIGN FOR AUDIOVISUAL FREE EXPRESSION (CAFE) ANNOUNCEMENTS LIST
    
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   News and announcements regarding CAFE and it's activities, including
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