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AG Ashcroft reaffirms his commitment to privacy
By Lisa S. Dean
Last summer I reported on a new surveillance system operated by the Federal Bureau of Investigation. The aptly named system called "Carnivore" is placed at the Internet Service Provider level and monitors online communications looking for criminal activity. While the FBI claims to be looking solely for criminals, "Carnivore" allows law enforcement to view much more than what criminals are up to.
Instead of operating according to traditional wiretap standards where the law enforcement officials obtain a warrant to tap a suspect's telephone line, Carnivore only requires a court order, to in effect, tap an Internet user's account for suspected illegal activity. The difference between a warrant and a court order, in terms of legal standards, is vast. A wiretap authorization allows the agent to obtain content, a court order allows for only the basic information similar to that obtained through a pen register -- namely that the suspect in question is trying to contact another. Through Carnivore, the agents obtain the header information, namely, who sent the message and to whom as well as the subject matter, in addition to other content contained in the message by obtaining only a court order. As a result, your private emails to your friends and family perhaps discussing very personal family matters, will end up in the hands of the FBI.
This leads to the second problem - a clear violation of the Fourth Amendment which is supposed to protect us from such activities performed by the government. Let me remind you of the wording of the Fourth Amendment: "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."
The FBI's "Carnivore" system completely disregards that Amendment because of its broad-sweeping powers to intercept hundreds of thousands of messages at one time from innocent citizens. How does one obtain a warrant to tap hundreds of thousands of email addresses at one time? Moreover, unless a government treats all of its citizens as guilty until proven innocent rather than the reverse, there is no "probable cause" to intercept the enormous amount of email communications, and that too is a violation of the Fourth Amendment. Since we're talking about cyberspace here, law enforcement is going to have a tough time "describing the place to be searched and the persons or things being seized." Also since we're talking about cyberspace where evidence is intangible rather than tangible, it would facilitate law enforcement's ability to seize property from one's computer without a warrant.
If you think that would never happen, just look at the recent bill in both Houses entitled "The Methamphetamine Anti-Proliferation Act" which gives law enforcement the ability to enter your home or tap your online communications and seize property both on and off-line without your knowledge.
But again, law enforcement has to obtain a warrant to even monitor your online conversations, right? Right but we have observed over time the ease with which law enforcement obtains warrants to perform wiretaps. Very few are refused by judges. In fact, it's almost a guarantee to law enforcement that their requests for warrants will be granted. Since 1968 when Congress passed the wiretap law, 28 requests have been denied out of a total in excess of 20,000. In 1996, one request was denied, the first since 1988. This illustrates a lack of oversight with regard to wiretapping on the part of Congress, which is critical to ensure that law enforcement is abiding by the Constitution.
But would a respectable agency such as the Federal Bureau of Investigation really stoop to these sorts of practices? The evidence suggests that they have done so already. In addition, in Senate testimony FBI Director Louis Freeh has said "We need a Fourth Amendment for the Information Age." So clearly this agency has little regard for the wording of the one given to us by our Founders because the original Amendment would forbid such systems as "Carnivore" and some of the other questionable surveillance practices conducted by that agency.
The Carnivore system originated under the reign of former Attorney General Janet Reno, who repeatedly demonstrated her ignorance with regard to the Constitution and our rights under it, throughout her term as AG. Our current Attorney General, John Ashcroft, has a much stronger respect for the Constitution and our rights which it guarantees.
In an op-ed published in the Washington Times in August of 1997, then-Senator Ashcroft stated the following: "There is a concern that the Internet could be used to commit crimes and that advanced encryption could disguise such activity. However, we do not provide the government with phone jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the Orwellian capability to listen at will and in real time to our communications across the Web?"
He goes on to say "The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value. Two hundred years of court decisions have stood in defense of this fundamental right. The state's interest in effective crime-fighting should never violate the people's Bill of Rights."
So far AG Ashcroft sounds very much like Senator Ashcroft. In a meeting with privacy advocates, Ashcroft reaffirmed his commitment to privacy indicating that he is willing to grant law enforcement the tools it needs to combat crime, but not at the expense of individual liberty or privacy. It's that sort of speech that this country needs to hear from its number one law enforcement official and I have every confidence that his actions will be consistent with his speech.
However, I have no doubt that Ashcroft will endure considerable presure from FBI Director Freeh and others in the agency who have no regard for individual liberty but want only to protect their ability to snoop on individual citizens at will. Therefore, to help the Attorney General stand strong, he should hear from each and every one of you on this matter. To voice your opinion on Carnivore and encourage the Attorney General to stand firm on this issue, email his office at email@example.com or write to him at:
Carnivore is currently on the Attorney General's desk awaiting his signature and we ask that you write as soon as possible to let your voice be heard on this issue.
Lisa Dean is Vice President for Technology Policy at the Free Congress Foundation.
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