WASHINGTON-Privacy concerns voiced by lawmakers last week about controversial FBI Internet wiretaps have given added visibility to the wireless industry’s dispute with the Justice Department and Federal Communications Commission over digital wiretap requirements that carriers and equipment vendors claim are excessive and constitutionally suspect.
The widespread backlash against the FBI’s Internet-sniffing device, nicknamed Carnivore, has become so great that Congress may try to pass limited legislation this year to address privacy fears.
“It’s not out of the realm of possibility … It’s certainly possible we’ll do something,” said Rep. John Canady (R-Fla.), chairman of the House Judiciary subcommittee on the Constitution, following last Monday’s hearing.
More comprehensive legislation would have to wait until next year, said Canady.
“I think Congress has to act,” said Rep. Jerrold Nadler (D-N.Y.), whose rigorous questioning of Justice Department officials revealed that some targets of wiretaps are never told their conversations have been overheard by law enforcement.
The hearing provided an unexpected forum to air complaints against the Justice Department and FBI about efforts to force wireless carriers and telecom service providers to comply with 1994 digital wiretap requirements.
Stewart Baker, a lawyer helping industry challenge the government’s implementation of the Communications Assistance for Law Enforcement Act of 1994, testified that federal law enforcement efforts to expand eavesdropping authority began with CALEA and have continued with Carnivore.
“We have a system that protects the privacy of crooks, not innocent victims,” Baker told lawmakers.
Baker accused the Justice Department of trying to leverage CALEA and Carnivore to gain greater electronic surveillance than that allowed by law.
“Both sides of this debate are stuck in the telephone world … I think the FBI and DOJ are living in the past,” said Baker.
Baker, pointing to a federal guideline allowing the FBI to continue listening in on a conference call even after the subject of the wiretap has left the conversation, said digital wiretap rules adopted by the FCC in 1999 are outside the scope of CALEA and violate privacy rights.
Privacy advocates agree.
“The whole history of the CALEA implementation process demonstrates why we should not be so quick to accept the FBI’s assurances that it will strictly adhere to the Constitution and the relevant statutes,” said Barry Steinhardt, associate director of the American Civil Liberties Union, in written testimony.
Steinhardt, saying Carnivore does damage to the Fourth Amendment and privacy laws, stated the Clinton administration conducted more wiretaps last year than any year in history and that the number of roving wiretaps nearly doubled.
The wireless industry, privacy advocates and others have mounted a court challenge to FCC digital wiretap regulations. Oral argument was held in May. The case is now ripe for a decision.
“Constitutional rights don’t end where cyberspace begins,” said Rep. John Conyers (D-Mich.), referring to Carnivore.
Justice Department officials portrayed Carnivore, which has been used to conduct around 25 e-mail wiretaps in the past two years, is a precision tool that’s deployed only when Internet service providers cannot or will not trap the origin and destination of a targeted e-mail.
“We don’t have the right or ability to go fishing,” said Donald Kerr, director of the FBI’s Lab Division. “Our system is passive on the network.”
Rep. Bob Barr (R-Ga.), arguably Congress’ harshest critic of the FBI and Clinton administration, replied, “Carnivore is not a passive system.”
Law enforcement officials said Internet wiretaps are necessary as criminal communications and activities migrate from the physical world to cyberspace.
Privacy advocates disagree, arguing that capturing e-mails via Carnivore allows the FBI to sift through massive amounts of information and yields far more information than the names of senders and recipients.
Peter Sachs, of a small Internet firm called ICONN L.L.C., said most Internet firms are capable of gathering the e-mail information required by court-ordered wiretaps in a less intrusive manner than the government.
