Carnivore

Proponents of warrantless wiretapping would have us believe that we must accept infringement of Fourth Amendment liberties in a dangerous post 9/11 world. Their argument is false anyway you look at it. In the first place, the Bush administration began pushing its unconstitutional activities as soon as it took office in 2000, and secondly, its utter failure to protect Manhattan in 2001 demonstrates the futility of a broad-based surveillance network run by an incompetent bureaucracy.

The recent history and techniques of electronic surveillance, should outrage anyone who values their privacy and freedom. The old ways, steaming open letters and tapping land lines , were not the sole province of cold war secret police like the Stasi in East Germany, but their use without judicial oversight was pointed to by the West as hallmarks of totalitarianism. Today,there are new methods, no less clandestine or egregious, and in use on a vast scale to spy on millions of Americans.

In the mid 1990’s, as the Internet build-out accelerated and e-mail became common, the FBI, true to its longstanding tradition, developed a system for tapping into it. First they hired software engineers to write programs for a surveillance operation dubbed “Carnivore”, and then they put together the hardware they needed to utilize it. The purpose was to maximize surveillance of all communications over the Internet while it was novel and unregulated and to thereby subvert Fourth Amendment requirements of probable cause, minimization. and most importantly, warrants.

"Carnivore software is a component of a software suite called DragonWare written by the FBI. The other components of DragonWare are Packeteer and CoolMiner, two additional programs that reconstruct e-mail and other Internet traffic from the collected packets."1 The software is set to filter, store and analyze e-mail correspondence directly from an ISP hub. The filters are key words that touch on a bewildering array of socio-political concerns of such paranoid breadth that J. Edgar must be wearing his craven death’s head smile like never before. For a sample from 2005 you can visit here if you dare.

Carnivore is employed after the FBI has convinced a court that an ISP is unable to sufficiently narrow information requested by the government on a particular case, or because the investigation is of such a sensitive nature that informing the ISP would compromise national security. Once judicial permission is given, a technically trained agent is deployed with a carnivore computer. He takes that computer from an FBI lab to the ISP and secures a work area where he installs a one-way tap into the Ethernet stream, and a telephone link to a remote computer that collects and examines the data. After that, his work is done. A case agent can then retrieve information remotely as the carnivore filters select it.

The Fourth Amendment requires that the court order for search and seizure describe the particulars of the search, and Title III requires that the electronic surveillance be minimized to include only those communications which are described in the warrant. Clearly, tapping every communication through an ISP hub in search of any one of thousands of key words, and then storing and reading those communications that, however innocuously, may contain one of those words, is a gross violation of privacy and a particularly slimy infringement of the search and seizure laws that make the Fourth Amendment so precious. It’s analogous to tapping every phone in America and then trusting the government to record only what they deem suspicious.

And as if that wasn’t bad enough, the sad fact is that for all this snooping, for this unprecedented invasion of privacy, there have been no real benefits to the national security whatsoever. For all the hundreds of thousands of us who have had our e-mail read over the last ten years, there have been few to none arrests or convictions of real terrorists because of it. Why is that? Is it because real terrorists have proven to be nothing if not diabolically clever and are not lining up to advertise their plans over the Internet in plain English? For that matter, all a terrorist cell has to do to undermine this FBI surveillance is to open an e-mail account, share the password among themselves, and save their communications as drafts. Then they can access those drafts from anywhere, anytime, without ever even sending e-mail. But then, if the FBI had thought of that, which is nothing more than an electronic update of the classic cold-war letter drop, they’d have been out of a job.

All of this unconstitutional surveillance was put in place long before the intelligence community failed to protect us from 9/11. If they were engaged in these activities then, ostensibly to fight the so-called War On Drugs and trading with Cuba, one can only begin to imagine what they are doing now behind the smoke screen of national security. In a telling precursor from the days of prohibition, the warrantless telephone wiretap case of Olmstead v US in 1928 was appealed all the way to the Supreme Court before being ruled in favor of the government by a 5-4 margin. Justice Taft, supporting the conviction stated, “The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment.” We now perceive the unreasonableness of this view. Dissenting Justice Brandeis said it best, one would hope, for all time, “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home….Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping…. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain; pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

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1 Smith, Steven P, et al. Independent Technical Review of the Carnivore System, http://www.usdoj.gov/jmd/publications/carniv_final.pdf, 12/8/2000