At an emergency hearing in Washington, D.C. Wednesday, U.S. District Judge James Robertson declared moot a public advocacy group’s petition calling for public disclosure of the FBI’s e-mail surveillance system because, the court said, the FBI had already agreed to handle the request shortly before the hearing. Instead, the court gave the FBI ten days to set a schedule for disclosing the details of the system.
The Electronic Privacy Information Center (EPIC) asked the court to take action because the U.S. Department of Justice (DOJ) had allegedly failed to act on a July 12th Freedom of Information Act request asking for details on the workings of the surveillance system, code-named “Carnivore.”
“This is a very important issue both in terms of public accountability and as a legal issue,” EPIC Director Marc Rotenberg told the E-Commerce Times.
Rotenberg added that EPIC went to court “to ensure that the Department of Justice is complying with Freedom of Information Act Law. They say that they are complying with the FOIA, but they’re not.”
EPIC hoped to restrict the FBI from using Carnivore until the public learned how the crime-detecting software worked.
Public Disclosure Demanded
Wednesday’s hearing did not call for the demise of Carnivore, but rather that all documentation regarding its operations be disclosed to the public under the FOIA.
When the Department of Justice, which oversees the FBI, failed to meet the FOIA’s deadline to make all information about the Carnivore project public by last Friday’s deadline, EPIC decided to go to court.
Carnivore as Public Servant?
Carnivore attaches a combination of hardware and software applications to the network of an Internet Service Provider (ISP) and scans all of the e-mail and other transmissions to locate a “target” piece of e-mail or communication from a specific person or suspect. Carnivore can analyze millions of messages per second while it searches for the specific messages that it wants.
The FBI is developing Carnivore to help the agency police cyberspace. Law enforcement officials have expressed increasing concern over how the Internet is used illegally for those who would anonymously distribute child pornography, steal confidential proprietary information or wreak havoc on e-commerce giants by hacking into their systems.
However, in its efforts to fight crime, Carnivore may also be violating U.S. constitutional guarantees of privacy. To find criminal activity online, Carnivore must read countless e-mails sent by law-abiding citizens. This process, argue privacy rights advocates and legislators, directly infringes upon Fourth Amendment rights against “unreasonable search and seizure.”
EPIC is not the only public advocacy organization to request the information. The American Civil Liberties Union (ACLU) has also pressed the FBI to abide by the FOIA’s statutes and reveal the inner workings of the Carnivore system.
Past Actions Failed
The actions in federal court Wednesday came one week after the FBI testified before a House Judiciary subcommittee in the U.S. Congress about the workings of Carnivore.
In a raucous July 24th hearing, the FBI presented the workings of Carnivore to a skeptical committee, which questioned the program’s constitutionality as well as the “aggressiveness” of the program’s name. Afterward, 27 House Republicans and one Democrat urged U.S. Attorney General Janet Reno to delay any further use of Carnivore until the FBI resolved the question of privacy issues.
Three days later, Reno said that the Department of Justice would reveal technical aspects of the Carnivore system to a select “group of experts.”
That level of disclosure was not enough to satisfy David Sobel, General Counsel of EPIC. “There is no substitute for a full and open public review of the Carnivore system,” Sobel said. “The only way that the privacy questions can be resolved is for the FBI to release all relevant information, both legal and technical.”