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House's anti-terror bill requires judge to monitor FBI's use of e-mail surveillance system
From: InfoSec News <isn () c4i org>
Date: Fri, 26 Oct 2001 04:27:33 -0500 (CDT)

Forwarded from: Marjorie Simmons <lawyer () carpereslegalis com>


By D. IAN HOPPER, Associated Press 
WASHINGTON (October 25, 2001 01:15 p.m. EDT 

The anti-terror bill passed Wednesday by the House will require a
judge to monitor the FBI's use of an e-mail surveillance system that
has raised concerns about privacy.

The requirement was inserted into the legislation by House Majority
Leader Dick Armey and cheered civil liberties groups, which have
misgivings about the many new powers the bill gives to law enforcers
to confront alleged terrorists.

The e-mail system once known as Carnivore is a device installed at an
Internet company to capture e-mails sent or received by a criminal

Opponents complain because the FBI won't explain how the device works
and worry that the broad net it casts may intercept information
belonging to people who are not targets of investigators.

"The concern about Carnivore has been its ability to collect too much
information," said David Sobel, general counsel of the Electronic
Privacy Information Center. "So it really is critical to have some
means of overseeing how the technique is actually used."

The legislative clause inserted by Armey will require investigators to
tell a judge every detail about a Carnivore installation, including
who installs and has access to it, its configuration and everything it

That report would be given to the judge no more than 30 days after the
expiration of a wiretap order. It would be kept secret but could be
used as a basis for the judge to consider whether the police over-
stepped their authority.  "This language will reassure the public that
these new powers will not be misused," Armey said.

Armey, R-Texas, has been a staunch critic of Carnivore, now called DCS
1000. His spokesman, Richard Diamond, said Armey told Rep.  James
Sensenbrenner, R-Wis., to ensure the language stayed in the final
version of the legislation. The Justice Department did not object,
Diamond said.  "It's nothing that would impede the main goal, which is
to get the bad guys," Diamond said. "It's not a hurdle to any
investigation if they're following the rules."  Federal agents say
they need Carnivore and other tools to catch criminals who use the
Internet to communicate and do business.

Authorities have used Carnivore-type tools more than 25 times in all
types of criminal cases, to catch fugitives, drug dealers,
extortionists and suspected foreign intelligence agents.

The investigation into the Sept. 11 attacks also has moved online, as
agents track down e-mail addresses and Web sites used by the airline
hijackers who destroyed the World Trade Center and damaged the

Critics still are trying to get information about Carnivore. EPIC has
filed a lawsuit to get more documents from the FBI, and some Internet
providers refuse to use it.

Some of the wiretapping and electronic surveillance portions of the
terrorism legislation, which largely expands such powers, expire at
the end of 2005, a compromise made by the Bush administration.  The
Carnivore reporting requirement is permanent, however. "Right now they
can install it simply on the basis of a claim that it's related to an
ongoing investigation. The judges have no discretion,"  American Civil
Liberties Union associate director Barry Steinhardt said.  "To the
extent in which it brings a judge into the equation at all, it's
useful," he said.

Marjorie Simmons, Esq. 
lawyer () carpereslegalis com

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