CDR: Re: Carnivore Probe Mollifies Some

[Tim May]

At 9:56 PM -0500 11/27/00, anonymous at openpgp.net wrote:
>A report is to conclude that the FBI's e-mail surveillance system 
>does not threaten civil liberties. Privacy advocates remain 
>unconvinced.
>By Jennifer DiSabatino
>Privacy advocates said they remain leery about the FBI's Carnivore 
>e-mail surveillance system following last night's release of a draft 
>report on the technology by an independent review team, despite the 
>report's conclusions that the controversial software essentially 
>does what it was designed to do - track specific digital 
>communications with the permission of a court order.
>
>But others, including the FBI, said the report prepared by the 
>Chicago-based IIT Research Institute (IITRI) shows that Carnivore 
>just needs to be fine-tuned and then closely monitored itself in 
>order to prevent the system from being improperly used by 
>law-enforcement officials.

No mention of a basic objection: this so-called Carnivore _might_ be 
authorized by a specific court order in a specific case, but:

a) it had better not pick up communications NOT PART OF THE ORDER.

and

b) it must be removed immediately after use

oh, and

c) all costs related to disruptions of service, downtime, etc. must 
be paid-for by the law enforcement agency or court ordering the 
operation.

I'm surprised I don't see more ruckus about b).

Look at it simply. Alice is operating a couple of machines for her 
small ISP. Some guys in uniform, or maybe just ninjas in black, 
arrive with a court order saying that their Pentium III Carnivore box 
must be attached to her system. She consults with her lawyer and says 
"OK, you can begin your attachment when we have a scheduled down time 
tonight at midnight."

Maybe they agree, maybe they demand immediate installation.

Anyway, it somehow gets installed. Assuming it doesn't have the 
deleterious effects Earthlink was reporting, let's assume it sits 
there and does its thing.

Ten days later, Jim Bell^h^H^H^H^Hthe perp is busted.

Alice calls the cops and says: "Come on over and pick up your machine."

Ah, but what we are hearing about Carnivore is that these would be 
semi-permanent installations.

Well, if I ran a small ISP, I think I'd say: "You got a wiretap order 
for one person. That order has now run its course. Get your machine 
out of my cage."

There is nothing in the Constitution about one particular search 
warrant then magically meaning access is forever granted! "We got a 
search warrant two years ago so we can enter this house at any time."

More in tune with discussions I used to see (and participate in) on 
the Cyberia-L list, there _might_ be some "innkeeper's 
interpretation" (so to speak) about how a hotel owner can authorize 
access to the rooms of patrons without specific warrants for the 
patrons, by name. I believe, though I don't have any cites, that this 
power is not so broad. And a warrant served against the San Francisco 
Hyatt Regency in, say, October 1997, does not mean that cops can 
wander through hotel rooms at will a year or three later.

My understanding of search warrants and wire taps is that the 
specific party, time and place, must be named.

There is no provision for Carnivore boxes being "resident."

CALEA has some onerous language in it, but it doesn't trump the 
Fourth Amendment.


--Tim May
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