Critics bash U.S. plan for surveillance standards

Privacy advocates yesterday said they're deeply disappointed with a White House proposal intended to strengthen legal requirements for Internet surveillance by law enforcement agencies, although the Clinton Administration vigorously defended the measures it put forward.

Advocates who have been critical of the FBI's Carnivore surveillance system said yesterday's announcement by the White House did little to temper alarm over recent revelations about the new technology, which has the ability to monitor all of an Internet service provider's network traffic.

"They didn't address Carnivore. They addressed everything but Carnivore, and in my mind, it really was a camouflage to cover the mess that is Carnivore," said Barry Steinhardt, associate director of the American Civil Liberties Union (ACLU). "The problem with Carnivore is that it is a black box with all of the service's private traffic flowing through it, and the FBI has unlimited power. Tweaking some of the standards is not going to solve the problem."

Both the ACLU and the Electronic Privacy Information Center (EPIC), last week filed Freedom of Information Act requests seeking all records related to Carnivore as well as copies of the source and object code that make up the system.

David Sobel, EPIC's general counsel, also rejected the White House action as an attempt to circumvent concern about the system.

"Why wasn't some moratorium on Carnivore announced?" Sobel asked. "How can the administration on one hand say they are trying to improve online privacy and also, at the same time, approve the use of technology that appears to be inherently invasive?"

But Linda Ricci, a spokesperson for the White House's Office of Management and Budget, rejected the charges that the legislative proposal outlined yesterday was a smokescreen aimed at obscuring larger issues concerning Carnivore. She said the proposal had been months in the making and wasn't announced in response to the Carnivore controversy.

In addition, Ricci said the proposal actually should ease concerns about the possible misuse of the Carnivore system. Under the proposal, she noted, usage of the surveillance technology would be limited to cases involving a list of serious crimes and would have to be approved by high-level officials at the Department of Justice and then by a judge who could weigh whether there was enough evidence to justify the proposed interception of messages.

And the information gathered with Carnivore could be suppressed in court if the rules weren't followed properly, Ricci added.

A House subcommittee will hold a hearing next week on the Carnivore system, and Attorney General Janet Reno has said she'll review whether Carnivore complies with constitutional privacy guarantees. The legislative proposals will be sent to the Senate Judiciary Committee, which has a variety of Internet surveillance and privacy bills under review.

The White House initiative was intended to create a standard for unifying inconsistent laws governing the surveillance of telephone, cable and Internet communications. The legislation would apply telephone-wiretapping standards, which require law-enforcement agents to show that they have probable cause of a crime, to obtain a court order for scanning the content of a suspect's e-mail.

In the past, so-called "pen registers" or "trap and trace" wiretaps produced lists of telephone numbers of people who had called suspects. But they now can be applied to the collection of e-mail or IP addresses that are available to investigators armed with just a subpoena.

"It's time to update and harmonize our existing laws to give all forms of technology the same legislative protections as our telephone conversations," said John D. Podesta, White House chief of staff, in a speech at the National Press Club yesterday. "Our proposed legislation would harmonize the legal standards that apply to law enforcement's access to e-mails, telephone calls and cable services."

Critics say surveillance standards could backfire

But privacy watchdogs say these attempts to update wiretapping standards could backfire and harm privacy protections. They claim investigators seeking e-mail from suspects using cable modems are frustrated by the Cable Act of 1984, which sets tougher restrictions for monitoring computers with cable connections.

Sobel said law enforcement is attempting to lower standards for surveillance of cable modems by arguing that the act applies only to subscribers' services rendered, such as television programming, and not to actual communications.

Sobel noted that applying existing wiretap laws also could erode the rights of suspects. Currently, he said, the legal requirements for law enforcement to access e-mail stored for more than 180 days on remote servers states that the owners of that communication must be notified.

Some Internet service providers, such as America Online Inc., continue to store e-mail messages long after they have been deleted by the users. But notice of such surveillance could disappear if the data is subject to court orders under current wiretap laws, which don't require informing the target of the investigation.

"Everyone involved really needs to look at the proposal and debate what makes sense," said Sobel. "We need to look closely at all of these issues and understand what the impact would be on these servers."

In response, Ricci argued that the Cable Act of 1984 wasn't written to cover two-way communications such as e-mail. "We don't believe that the cable act was ever intended to create a wiretap-free zone," she said. "If it did, folks with the intention to commit crimes would go out and communicate via cable modems and stop using the telephone."

Meanwhile, EarthLink Inc., an Atlanta-based Internet service provider with 3.5 million subscribers, this week reached an agreement with the FBI that permits the company to deliver information requested in a court order instead of having the FBI install Carnivore on its network.

EarthLink had argued previously that the Carnivore system would monitor the traffic of subscribers who aren't suspected of any crimes, but it was overruled by a federal magistrate who ordered EarthLink to install the system. The company declined further comment on the agreement.

But Sobel said Internet service providers appear to be hiding behind these court orders. He said they should instead speak out against Carnivore, take their concerns to a judge as EarthLink did and share information on working out agreements with the FBI.

Copyright © 2000 IDG Communications, Inc.

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