Clinton administration plan for FBI spying on email

The Clinton administration announced July 17 that it would seek broad powers to compel Internet Service Providers to allow FBI monitoring of email messages, using a powerful software package devised by the police agency and given the ominous title of “Carnivore.”

In its familiar style, the White House is packaging this reactionary plan as a “reform,” presenting an expansion of wiretapping as an effort to set limits on the FBI and insure civil liberties. Chief of Staff John D. Podesta, in a speech to the National Press Club, declared, “It's time to update and harmonize our existing laws to give all forms of technology the same legislative protections as our telephone conversations.”

Conflicting laws currently regulate police surveillance and interception of various modes of private communication in the United States. For example, telephone calls may only be wiretapped by the police with a court order, while there is no legal restriction on the interception of ordinary email. Communications routed over cable modems are effectively immune from interception, since police are required to obtain a court order after a judicial process in which the target of the surveillance has the right to challenge it.

These contradictions are a byproduct of the rapid development of communications technology. Email messages have little legal protection because until recently it was technologically impractical for the FBI to monitor them systematically. Carnivore was only developed in the last 18 months, as a modification of a software program typically used by Internet Service Providers (ISPs) known as a “packet sniffer.” It sorts through the stream of data entering an ISP to find the senders and recipients of email to and from the target of surveillance.

Because Carnivore examines every email message handled through a given ISP, it closely resembles a form of telephone surveillance called a “trunk side” wiretap, in which the tap is placed, not on a particular phone, but in a telephone company switching center. Such wiretaps have been illegal in the United States for more than 30 years, since they give police access to all phone calls rather than those of a specific target. Under the Clinton administration plan, the email equivalent of such illegal wiretaps would now be permissible.

Opponents of the legislation have pointed out that there is no way to insure, once Carnivore is installed on an ISP, that the FBI would limit itself to monitoring the email of one targeted individual. The agency would be accountable only to itself. It has refused to release the source code for Carnivore, citing the proprietary interest of the companies which helped develop it, but also because, as one official said, “people might go to work on how to beat the system. We're not interested in getting into that race.”

Barry Steinhardt, associate director of the American Civil Liberties Union, criticized the plan to install Carnivore, saying it “represents a grave threat to the privacy of all Americans by giving law enforcement agencies unsupervised access to a nearly unlimited amount of communications traffic.”

The Clinton administration's posture is that messages sent over the Internet should be treated in the same way as telephone calls. That is, monitoring ordinary email should require a court order (a restriction of police power), while monitoring email over cable lines should be made easier. But in practice, given the different character of email and telephone communication, the proposed measure amounts to a sweeping expansion of police powers.

For instance, current law gives police virtually unlimited right to “transaction” surveillance of telephone calls. Telephone companies routinely hand over to the police, on request, logs of all calls made from a particular telephone and to whom. This power would now be extended by requiring ISPs to provide police the logs of email messages, when they were sent and to whom, as well as the record of web sites visited.

This power is a much more serious threat to political freedom than telephone logs, which reveal far less about the content of the communication being monitored. A list of web sites visited can tell a great deal about the political beliefs of someone targeted for police surveillance. Moreover, police cannot seek access to the content of phone calls when they learn of them after the fact from a log. Email messages, however, are recorded automatically by the Internet Service Provider. Accordingly, there will be intense pressure to divulge the content of messages once the police learn of their existence.

The email monitoring program would have worldwide implications, since it would apply to all communications that either begin or end in the United States. It would not apply to email messages transmitted entirely outside the country, but these could be monitored if they pass through an ISP based in the US—as do many email messages between European countries, for instance. The FBI recently objected to the takeover of a US-based Internet provider by the Nippon Telegraph & Telephone, citing “national security” considerations. According to one report, “the focus of the FBI's complaint is about preserving wiretap capabilities when an Internet service provider (ISP) is foreign-owned.”

The FBI is also pressuring makers of Internet equipment and software to insure that the next generation of Internet technologies have “wiretap-friendly” features. This amounts to an effort by the agency to assume powers that were specifically barred to it in the Communications Assistance to Law Enforcement Act of 1994, which excluded the Internet from federal police spying.

Congressional reaction to the White House plan was mixed, with most Democrats supporting it. Senator Patrick Leahy of Vermont cited the refusal of some ISPs to execute court orders for wiretapping, declaring, “If an ISP says it will not or cannot execute the order, what is the FBI supposed to do?” There was more opposition among congressional Republicans, citing either privacy considerations or concern that federal monitoring could be a prelude to other forms of regulation of the Internet, or taxation.

Neither party voiced any opposition to the widespread phenomenon of corporate spying on the email and Internet use of workers. An American Management Association survey released last month found that nearly three quarters of all companies conduct such monitoring actively, while one quarter have fired workers as a result.

(lest we forget)

Anti-Terrorism Powers Grow

'Roving' Wiretaps, Secret Court Orders
Used to Hunt Suspects

By Vernon Loeb
Washington Post Staff Writer
Friday, January 29, 1999; Page A23

As President Clinton proposes massive funding increases for
counterterrorism, federal law enforcement agencies have already
received substantial new legal authority to fight suspected
terrorists with "roving" wiretaps and secret court orders for
tracing telephone calls and obtaining business records.

The expanded powers, high on the FBI's legislative wish list for
years, were passed by Congress last fall as part of the
intelligence authorization act. Michael Woods, chief of the FBI's
national security law unit, said this week that "any one of these
extremely valuable tools could be the keystone of a successful
operation" against sophisticated foreign terrorists and
intelligence operatives.

But the American Civil Liberties Union (ACLU) and other privacy
rights activists oppose the expanded law enforcement powers as
unwarranted attacks on the Fourth Amendment, which bars
unreasonable searches and seizures, and say the changes were
enacted by an intelligence conference committee without public
hearings and almost no debate.

Neil J. Gallagher, the FBI's assistant director for national
security, said the expanded powers can only be exercised with
court approval. "We have to go to court and present the facts,"
Gallagher said. "It is not as though the FBI is using intrusive
techniques" on its own authority.

"Roving wiretaps" enable the government to eavesdrop on calls
made by a suspect from multiple phones. Although legal authority
for the wiretaps has existed since 1986, the courts have allowed
few such intercepts because a standard requires the government to
prove a suspect is intentionally thwarting a conventional wiretap
by frequently changing phones. The new "roving wiretap"
provision, applicable in all criminal investigations and not
limited for use against terrorist suspects, removes "intent"
from the legal standard and requires the government to show only
that a target's use of multiple phones has the "effect" of
preventing interception.

Other new provisions for obtaining business records and tracing
telephone calls amend a little-known statute called the Foreign
Intelligence Surveillance Act (FISA). The law, passed 21 years
ago, established a secret federal court to approve wiretap
requests made by the Justice Department against suspected foreign
terrorists and intelligence agents without probable cause that a
crime has been committed.

Secret FISA wiretaps, search warrants and orders can be used
against U.S. citizens only in cases where the government can show
there is a reason to believe that an American is engaged in
espionage or terrorism on behalf of a foreign power.

With the rise of international terrorism, the FISA framework has
become a major source of information for intelligence- gathering
and evidence for law enforcement. A secret FISA search warrant
was granted in March 1995 to search a New York apartment building
inhabited by members of Aum Shinrikyo, the Japanese religious
cult that unleashed a sarin gas attack in the Tokyo subway
system, even though its followers were not suspected of any crime
in the United States. Critical evidence in both the World Trade
Center bombing case and the Aldrich H. Ames spy case also came
from warrants and wiretaps granted under FISA.

Today, the secret FISA court grants more wiretaps than all other
federal courts nationwide in criminal cases. In 1997, the FISA
court approved 749 wiretaps; all other federal courts approved
569 wiretaps, federal records show. FISA wiretaps have doubled
since the last year of the Bush administration, records show.

One of the new FISA provisions passed by Congress last year would
enable the Justice Department to obtain from the secret court an
order that would allow agents to obtain the telephone numbers of
all incoming and outgoing calls on any lines used or called by
suspected foreign agents or terrorists.

The other new FISA provision enables the Justice Department to
obtain records from airlines, bus companies, rental car outlets,
storage facilities, hotels and motels used by any suspected
foreign agent or terrorist.

Kate Martin, director of the Center for National Security
Studies, said expanding the government's power under FISA to
fight foreign terrorist threats in the United States dangerously
blurs the line between intelligence-gathering and law
enforcement, especially when individuals charged as spies and
terrorists have no way to challenge the underlying issuance of
FISA warrants and wiretaps used to gather evidence against them.

"They're vastly expanding the traditional nature of what is a
foreign intelligence investigation, and that threatens civil
liberties in my view," she said. "They're trying to put under
foreign intelligence matters that should be handled under the
criminal code. We've already been down that road with disastrous
consequences."

The ACLU, in its analysis, opposed all three provisions, but the
"roving" wiretap amendment topped its list. The provision "would
not only lower the evidentiary standard for a roving wiretap
order, it would also allow the tapping of any phone near the
subject at any time the order is in effect. This includes the
telephones in the private residences of a subject's friends,
neighbors and business associates."

Deputy Attorney General Eric H. Holder Jr., in a recent statement
on "roving wiretaps," said that federal agents can use such an
intercept only to "listen in on those criminally-related
conversations in which the suspect is a party."

As for the new FISA provisions, senior FBI officials said that
Justice Department guidelines make it clear that FISA powers are
not to be used as a way around probable cause to gather evidence
in criminal investigations.

"People can be agents of a foreign power or agents of a foreign
terrorist organization--and we may know that's what they're
doing--but have not yet committed a crime," said FBI's Woods.
"Criminal authorities are not triggered until a crime is
committed. The goal is to be able to not only build cases when we
need to build cases, but prevent terrorist activities."

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