America's increasing reliance on internet communications leaves
many citizens concerned about the possibility of the government implementing
systems that will monitor individuals' visits to certain web sites, probe into
private email and other electronic communications. One such system is the
'packet sniffer' system called Carnivore.
Carnivore
Carnivore was an Internet
surveillance tool implemented by the Federal Bureau of Investigation (FBI) so
that they could monitor the electronic transmissions and internet activities of
specified suspects. Despite the belief that 'big brother' is watching everything
via Carnovire by searching all messages for key words (e.g., 'bomb' or
'terrorist'), Carnivore only selects messages based on criteria expressly set
out by a court order. For example, it might monitor messages transmitted
to or from a particular account or to or from specified users.
Furthermore, before this system can operate, it must be physically installed at
an Internet Service Provider (ISP) or Local Area Network (LAN); at the time of
installation, the FBI must presumably produce the court order to the
ISP.
Despite the fact that Carnivore is supposed to require a court
order to implement monitoring, the system itself is not built with sufficient
security provisions to prevent unauthorized use. A private study by the
Illinois Institute of Technology, comissioned by the U.S. Department of Justice
in response to concerns about possible privacy violations, found several
problems with Carnivore. For example, Carnivore didn't have any software
features that would require a user to confirm and prove that a court order had
been ordered. Also, there was no failsafe device to maintain an audit
trail of individual users to insure that the system was being used in accord
with the law.
The Electronic Communication and Privacy Act
Concerns over electronic privacy are addressed via laws
and regulations that define how the government can electronically intrude on a
citizen's private life. One of these laws, the Electronic Communication
and Privacy Act (ECPA), was enacted in 1986 to
extend government restrictions on telephone wire taps to include transmissions
of electronic data by computer. The ECPA was an
amendment to Title III of the OmnibusCrime Control and Safe Streets Act of
1968 which was primarily designed
to prevent unauthorized government access to private electronic communications.
The ECPA protects individual
communications from government surveillance without a court order, from
third parties with no legitimate access to the messages. It protects electronic
communication while in transit and while stored. It also provides that the
government may require an ISP provide stored
communciation and transactional records ONLY with warrant or by giving prior
notice to subscriber and then issues
a subpoena or receives a court order. However
it appears to provide little privacy protection to employees with respect to their
communication as conducted on the
equipment owned by their employer.
The ECPA was amended, and weakened
to some extent, by some provisions of the US Patriot Act. While the
Patriot Act may have weakened the ECPA somewhat, it is important to note
that,the Patriot Act, in and of itself, generally broadened government
rights to monitor electronic communications.
 The
Patriot Act: Is Big Brother Watching?
The U.S. Patriot Act, among other things, regulates government
monitoring of electronic communications. This law was passed shortly after
the terrorist act on the Twin Towers that gives law enforcement greater tools to
investigate terrorist activities. Several of the provisions of the Patriot
Act are considered controversial. For example, the Act expanded the
definition of ‘terrorism’ so that more ‘stuff’ fits in this definition.
Furthermore, it makes surveillance of 'suspects' easier and requires less ‘due
process’ which impacts, specifically, electronic communications. For
example, wire taps, searches, surveillance of internet use now require less
finding of cause in order to obtain a court order. One highly controversial
provision of the Act is the nationwide ‘roving’ wiretaps. Once a court
order for a roving wire tap has been obtained, the government can monitor phone
to phone, computer to computer without showing that each user is used by
their target of the court order. For example, if Jim is the target and Jim
calls or emails Paula, both Jim and Paula's email, phone conversations
can be monitored. Thus, when Paula emails people other than Jim, all of those
emails are also monitored. Furthermore, the only requirement for obtaining
a court order is that the target be under investigation for possible terrorism;
there is no requirement that the agency requesting the court order show that the
information is relevant to an on-going criminal investigation.
As always, there is a tension between
individual freedoms and crime control. And, in the post 9/11 environment,
some people believe that the balance has swung more toward crime control that it
should. But then, we're still free to think whatever we want!
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