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F00615FD7?OpenDocument& Headline=FBI%27s%20troubles%20could%20imperil%20its%20system%20of%20e-mail%20s urveillance FBI's troubles could imperil its system of e-mail surveillance By jon Sawyer Post-Dispatch Washingtion bureau 06/02/2001 (Ron Edmonds/AP) WASHINGTON - The FBI's recent troubles could imperil the e-mail surveillance system that the agency developed and that critics have blasted as a threat to individual privacy. The fate of the surveillance system, called Carnivore, will be addressed first by Attorney General John Ashcroft. He delayed completion of an internal review of the program when the FBI was rocked by controversy over its misplaced documents in the case against Oklahoma City bomber Timothy McVeigh. The Carnivore system had been endorsed by former Attorney General Janet Reno and received a qualified vote of confidence in an outside review last December by the Illinois Institute of Technology. Ashcroft, a leader on privacy issues during his term in the Senate, had taken a more skeptical stance even before the McVeigh disclosures. If Ashcroft gives the surveillance system his approval, it will immediately be the focus of scrutiny on Capitol Hill, especially in the Senate Judiciary Committee. Committee staff members said incoming Democratic Chairman Patrick Leahy of Vermont would announce Sunday that he plans hearings on FBI oversight as one of his first agenda items this summer. Committee spokesman David Carle said Leahy has concerns not just about Carnivore and the McVeigh case but also reports of mishandled documents and resistance to cooperation in connection with the bureau's crime lab, its handling of the Robert Hanssen spy investigation and its response to the inquiry by former Sen. John C. Danforth, R-Mo., into the FBI's fatal 1993 raid on the Branch Davidian complex in Waco, Texas. Carle said Leahy intends to address these "problem areas" because they "raise concerns about a culture at the FBI that makes it difficult for the bureau to admit and correct mistakes." Judiciary Committee staff said the hearings planned for this summer will also address the proposal by Sen. Dick Durbin, D-Ill., to establish an independent inspector general for the FBI who would report to the attorney general and to Congress. The Justice Department's inspector general now has oversight for the entire department, including the FBI. Also pending: a raft of proposals aimed at buttressing privacy protection, among them legislation that would require Internet service providers to obtain permission in advance before distributing financial, health or consumption information on individual users. Critics say the proposals could add tens of billions of dollars in business costs; supporters say the cost will be much smaller and worth the price in terms of individual privacy. Leahy has championed such proposals in the past and is likely to take the lead again, according to specialists in the field. But they note that this issue cuts across normal political lines, embracing conservatives like Ashcroft and Rep. Bob Barr, R-Ga., as well. "I don't see that much difference between this administration and the last," said Robert E. Litan, director of economic studies at the Brookings Institution. Litan cited Bush's surprise decision to let stand the new rules on protection of medical-records privacy proposed last December by President Bill Clinton. "The right wing of the Republican Party is very nervous about privacy, just as liberal Democrats are," Litan said. "It's one of the only things these people agree on - that they don't want their names tossed about without their permission." For the Bush administration one of the first tests in the privacy battles will be Ashcroft's call on Carnivore, a software program that the FBI touts as an essential weapon against Internet crime and that critics view as an invitation to FBI abuse. The Carnivore system has been used 30 times so far, the FBI says, each time pursuant to a court-approved search warrant. The software, when linked to an Internet Service Provider, lets the FBI scan for e-mail messages that the target subject has transmitted or received. The bureau says built-in controls limit the intercepts to addresses only, not the actual content of e-mail messages, and that FBI technicians work closely with their counterparts at the ISPs. The bureau says its only mistake in developing the program was coming up with a name that makes it sound more threatening than it is. "The name was really done with pretty innocent intentions," said spokesman Paul Bressin. He recalled that when the system was under development in 1999, the daughter of one of the engineers happened to be studying dinosaurs in school. "Carnivore" was really "just a cutesy way of picking a name that sticks in the mind," Bressin said. "We obviously didn't realize that the name itself would get us in more trouble than the actual capabilities of the system." As of earlier this year the FBI dropped references to Carnivore and began calling the system the "DCS1000." To its critics, the system, whatever its name, is fraught with trouble. David Sobel, general counsel of the Electronic Privacy Information Center, said a wayward agent could reconfigure the Carnivore software to capture e-mail content as well as addresses - not just for the targeted individual but for anyone who happened to use the same ISP. And because the software is controlled by the bureau and not the ISP, he added, there is no outside check on bureau performance. This is a radically different approach, Sobel said, from the traditional rules of search warrants and telephone wiretaps. "If the FBI had a subpoena or warrant for a particular individual's bank records we would never accept a situation where the bank sits the agent down at a computer and says 'Look for whatever you want,'" Sobel said. "Law enforcement has never been given unchecked access to everything and then trusted to take only what they are authorized to take," he added, "but that's what happens with Carnivore." Bressin, the FBI spokesman, said such distrust is unwarranted. "We make mistakes like everyone else," he said, "but why should an ISP operator be more trusted than someone in the FBI, a sworn law enforcement officer who's gone through extensive background checks and who is using a technology that protects privacy better than anything we've had before?" The shorthand answer, said Gregory T. Nujeim, chief legislative counsel for the American Civil Liberties Union, are incidents like Waco, reports of falsified FBI lab data and, most recently, the FBI interview reports in the McVeigh case that turned up six years late. "All these cases have had an impact," Nujeim said. "The FBI's defense of Carnivore is that they can be trusted to read only the communications that it's entitled by court order to obtain. The McVeigh case, like the others before it, raise questions about the extent to which the FBI can be entrusted with such an extraordinary power." Nujeim and Sobel were among half a dozen privacy advocates who discussed Carnivore and other concerns during a closed-door meeting with Ashcroft on April 19 - the anniversary, as it happened, of McVeigh's 1995 attack in Oklahoma City and of the FBI siege in Waco two years earlier that helped trigger his anti-government rage. Participants in the meeting said that Ashcroft was attentive to the concerns they raised but did not tip his hand, other than to promise the appointment of a high-level Justice Department official as liaison for privacy issues. Lisa S. Dean, vice president for technology at the conservative-leaning Free Congress Foundation, was one of those present. She said that in her view Ashcroft took a stronger line than did former Attorney General Reno. "He said very bluntly that he was more than willing to give law enforcement the tools it needs to fight crime on all levels - but not at the expense of individual privacy and constitutional rights," Dean said. "He's been very clear on that and much better than Reno, who basically stopped with the first part of that sentence." To privacy advocates the issue is whether Ashcroft will live up to the staunch position he took as a senator. He helped lead the fight that resulted in one of FBI Director Louis Freeh's rare defeats - the refusal by Congress and the Clinton administration to give the FBI "keys" to unlock encryption systems in computer software. "Granted, the Internet could be used to commit crimes, and advanced encryption could disguise such activities," Ashcroft said in an op-ed piece he wrote for Investors' Business Daily in 1997. "However, we do not provide the government with phone jacks outside our homes for unlimited wiretaps," he added. "Why, then, should we grant the government the Orwellian capability to listen at will and in real time to our communications across the Web?" |
