"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments under three provisions originally enacted to regulate telephone surveillance--Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (Title lI) and the Electronic Communications Privacy Act of 1986 (ECPA)--and a statute governing retrieval of "transactional records" of communications--the Communication Assistance for Law Enforcement Act of 1994 (CALEA). Title III governs the use of electronic surveillance to capture the full content of communications, commonly referred to as "wiretapping." The ECPA is concerned with the use of "pen register" devices--which traditionally allowed law enforcement officers to record the telephone numbers dialed from a suspect's telephone--and "trap and trace" devices--which traditionally involved capturing the originating telephone numbers of incoming calls to a criminal suspect, like caller ID devices. In a manner not entirely clear, FBI officials justify interception of e-mail addressing information under a conflation of ECPA and CALEA[...] While the pen register and trap and trace functions are neither the most controversial nor potentially invasive aspects of Carnivore, they are at least the most legally contestable of its uses. The FBI's assertion of constitutional and statutory authority to employ these functions on the Internet are challenged by those who believe a pen register capturing IP address and/or header information from e-mail messages falls outside the scope contemplated by the courts and Congress for pen registers. This note explores this question, drawing on statutes and case law that form the foundation of authority for electronic surveillance. Part II provides a brief overview of the Carnivore system and its capabilities. Part III elaborates on the statutory and constitutional authority for pen register and trap and trace devices in the traditional telephone context, as well as the legal requirements for obtaining a court order to install such a device. Part IV analyzes the FBI's proposed justification for Internet use and concludes that while constitutional authority exists for pen register applications of Carnivore, statutory authority derives from sections imposing higher evidentiary standards on law enforcement than the pen register statutes. Part V recommends that Internet pen register orders be issued only upon satisfaction of the stricter evidentiary standard of 18 U.S.C. § 2703.
Anthony E. Orr,
Marking Carnivore's Territory: Rethinking Pen Registers on the Internet,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol8/iss1/5
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