Heavily censored FBI documents obtained by US watchdog outfit the Electronic Privacy Information Centre (EPIC), under a Freedom of Information Act (FOIA) lawsuit, indicate that the FBI's electronic snoop known as Carnivore might be able to monitor a good deal more than just e-mail traffic.
Among the capabilities that peek out from behind all the indelible black swaths in the documents is an ability to reconstruct an entire Web page as viewed by a subject. A planned, updated version may even be able to capture voice-over-Web communications. Presently the system can capture and record all packet traffic to and from a selected IP, while monitoring a subject's on-line movements.
These extra capabilities underscore the controversial issue of FBI reliability in restraining itself when authorised to view only e-mail headers. This is a crucial point, because the Bureau can obtain the on-line equivalent of a pen register order (recording the destinations of out-going communications) or a trap and trace order (recording the origins of in-coming communications) without a warrant signed by a judge. Because of the lower standard, the contents of such communications must not be intercepted.
For such limited surveillance the standard of evidence is quite low: the FBI need merely be prepared to prove that the information sought could be material to an investigation. To snoop on the actual content communicated - the on-line equivalent of a telephone wiretap - the FBI must satisfy a judge that a crime is likely to be committed.
Some judges hand out wiretap orders as if they were parking tickets; others will laugh one out of chambers for producing less than a smoking gun in evidence. The system is far from perfect, but on balance it does a tolerable job of keeping most of the Feds at an appropriate distance most of the time.
But many fear that the FBI could broaden its on-line snooping under limited surveillance orders, succumbing to temptation provided by Carnivore's additional capabilities. Suppose, for example, that FBI agents were to obtain a pen register and/or trap and trace order for a subject, but then go a bit further on their own. Would anyone be the wiser?
And what becomes of information collected illegally? It's useless in court, being the poisonous fruit of a forbidden tree. But suppose it were sufficient to tip off the Feds to a criminal act for which they could later obtain evidence legitimately.
They wouldn't have known about it if they hadn't broken the law, but they'll build a case in court based on evidence gathered legitimately. Would anyone be the wiser?
One possible solution to these concerns would be for the FBI to develop a bare-bones version of Carnivore, capable of intercepting nothing more than e-mail headers, to be used for the on-line equivalent of trap and trace and pen register orders.
Thus the full-scale Carnivore with its additional capabilities would be authorised for use only when a wiretap order had been issued by a judge. This wouldn't be a guarantee against abuse of limited snooping authority, but it would add an extra layer of protection for subjects, and a bit more credibility to FBI claims of conscientious self-regulation. Abuse would require a wider circle of cooperation, and so increase the likelihood that an overzealous agent would be caught with his hand in the cookie jar by a supervisor. ®