Carnivore, The FBI’s E-mail Surveillance System: Devouring Criminals, Not Privacy

I. INTRODUCTION "Carelessness about our security is dangerous; carelessness about our freedom is also dangerous." (1) The obvious message of this statement is to be ever-mindful of the fine line between a comfortable co-existence with the government and a pronounced separation from the government. Accordingly, decisions to support or oppose governmental action should contemplate this cautious yet responsible approach. The abstraction of the statement requires its individualized application to specific governmental action to determine whether our decision to endorse or oppose that action is prudent. One such governmental action is the FBI's implementation of Carnivore, an Internet monitoring system introduced on July 11, 2000. (2) Carnivore was designed, and is used exclusively, to carry out court-ordered surveillance of electronic communications, e.g., e-mail. (3) Carnivore is a tangible, portable device, tantamount to a phone tap, that acts as a "sniffer," allowing the FBI to intercept and collect criminal suspects' e-mail without their knowledge or consent. (4) Carnivore is used only in limited circumstances--after FBI, Department of Justice, and judicial scrutiny--pursuant to detailed court orders prescribing and proscribing retrieval procedures. (5) The concern that Carnivore transforms George Orwell's fictitious "Big Brother" concept to reality (by allowing the FBI to engage in unfettered e-mail monitoring), however, raises the need to address the system. Accordingly, this Note addresses competing and parallel interests between the government and society to determine the legitimacy and necessity of Carnivore. The purpose of this Note is twofold: first to demonstrate the need for Carnivore to enable law enforcement to keep up with criminals who utilize cyberspace to communicate criminal plans; and second to dispel privacy concerns associated with the system by allaying misconceptions and fears related to its implementation and usage. Part II of this Note addresses the catalyzing reasons for Carnivore's design and use. Part III describes the FBI's extensive and mandatory internal procedures that dictate the decision to use Carnivore to pursue a suspected criminal, and addresses the three federal statutes that can empower Carnivore's use. Part IV explains Carnivore's method of operation; i.e., how it works in each of three stages. Part V articulates the privacy concerns raised by privacy advocates, including: (1) the possibility of collecting and storing e-mail in violation of federal law; (2) Fourth Amendment infringement; and (3) a lack of FBI individual accountability by failing to employ tracking mechanisms that allow for independent oversight. Finally, this Note concludes by addressing policy considerations that should shape the future for Carnivore. II. A BACKGROUND TO CARNIVORE: REASONS FOR IMPLEMENTATION As computer technology and usage rapidly proliferates within our society, criminals embrace this advancement by capitalizing on the opportunities and capabilities produced by that technology's increasing pervasiveness. (6) The FBI recognizes cyberspace as an efficient and increasingly popular medium for criminal activity, especially among spies, hackers, and other dangerous criminals. (7) In response to these threats against the safety of the American people, to the security of our communications infrastructure, and to the important commercial and private need for a safe, secure, and vibrant Internet, the FBI has concentrated its technological efforts and resources to fight a broad array of cyber crimes. (8) One of these efforts has been in the design and implementation of Carnivore, which the FBI hopes will increase public safety by reducing the amount of computer-assisted criminal activity. Specifically, the FBI has articulated five types of critically important crimes that Carnivore will target: terrorism, information warfare, child pornography, fraud (including white collar), and virus writing and distribution. …