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:
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  • 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

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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.

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

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."

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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:
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For information about joining us in our fight to protect your rights, see:
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