Carnivore, now officially called DCS1000, is a system that
allows investigators to capture e-mail communications sent to and
by suspects. The FBI installs software with an ISP to monitor
certain individuals, a type of system sometimes known as a “packet
sniffer.” According to the FBI, it can be configured to intercept
only certain types of communications, such as e-mail but not web
sites visited. The system has long been criticised by the civil
liberties group the Electronic Privacy Information Center (EPIC)
which fights to restrict its use.
The incident, which occurred in March 2000, is described in
newly-released FBI documents obtained under court order by EPIC. A
written report describes the incident as part of a "pattern"
indicating "an inability on the part of the FBI to manage" its
foreign intelligence surveillance activities.
An internal FBI e-mail message dated 5th April, 2000, and sent
to M E (Spike) Bowman, Associate General Counsel for National
Security Affairs, recounts how the Carnivore "software was turned
on and did not work correctly."
The surveillance system captured not only the electronic
communications of the court-authorised target, "but also picked up
e-mails on non-covered" individuals, a violation of federal wiretap
law. According to the Bureau document, the "FBI technical person
was apparently so upset that he destroyed all the e-mail take,
including the take on [the authorised target]."
The botched surveillance was performed by the FBI's
International Terrorism Operations Section (ITOS) and its "UBL
Unit," which refers to the government's official designation of
Osama bin Laden. The Bureau document indicates that an official at
the Justice Department's Office of Intelligence Policy and Review
(whose name has been deleted) became aware of the problem, and "To
state that she is unhappy with ITOS and the UBL Unit would be an
understatement of incredible proportions."
The reported problem apparently was not the first to arise
during the course of FBI implementation of the Foreign Intelligence
Surveillance Act (FISA). The internal document concludes its report
of the "UBL Unit" incident by noting, "When you add this story to
the FISA mistakes covered in [another, unreleased document], you
have a pattern of occurrences which indicate to OIPR an inability
on the part of the FBI to manage its FISAs."
Two Bureau documents written one week later discuss Carnivore's
tendency to cause "the improper capture of data," and note that
"[s]uch unauthorised interceptions not only can violate a citizen's
privacy but also can seriously 'contaminate' ongoing
investigations" and that such interceptions are "unlawful."
An FBI lawyer (whose name has been deleted) writes that the
Bureau must "go out of our way to avoid tripping over innocent
third party communications." The lawyer concludes, "I am not sure
how we can proceed to test [Carnivore] without inadvertently
intercepting the communications of others, but we really need to
try."
Since its existence became public in 2000, the Carnivore system
has been criticised by EPIC and other privacy groups, as well as
members of Congress, because it gives the FBI unprecedented, direct
access to the data networks of ISPs. The FBI has publicly
downplayed the system's potential for over-collection of private
communications.
An independent review of Carnivore commissioned by the Justice
Department found that the system is capable of "broad sweeps" and
recommended technical changes to address the problem. Neither the
Department of Justice nor the FBI has indicated publicly whether
those recommendations were ever implemented.
The newly-released FBI documents were provided to EPIC on
Friday, May 24, in response to a court order issued by US District
Judge James Robertson in the privacy group's ongoing Freedom of
Information Act lawsuit seeking the disclosure of material
concerning Carnivore.
The order directed the Bureau to conduct a second search for
relevant documents after EPIC successfully argued (over the
Bureau's objections) that an initial FBI search was inadequate and
likely overlooked responsive records.
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