Court beefs up Carnivore requirements

The court's decision

U.S. government agents have to meet the highest legal standards if they

want to intercept packets of data that mingle "to" and "from" information

with the content of the message, a U.S. federal appeals court ruled Tuesday.

Even though the ruling did not reverse a Federal Communications Commission

order on packet data, privacy advocates hailed the ruling, especially as

it pertains to the FBI's Carnivore e-mail sniffer.

According to James Dempsey, senior staff counsel for the Center for

Democracy and Technology, the court's ruling casts doubt over the legality

of the Carnivore system, which is placed with Internet service providers

to monitor the e-mail of criminal suspects. The FBI has relied on a lesser

standard when using Carnivore to discover with whom a suspect is communicating.

The U.S. Court of Appeals for the District of Columbia issued the decision

in a case brought by the United States Telephone Association and privacy

rights organizations, including the CDT. The case challenged portions of

the FCC's order to implement the Communications Assistance for Law Enforcement

Act of 1994. CALEA was intended to preserve law enforcement wiretapping

capabilities as new technologies are implemented in U.S. telecommunications

networks.

The court reversed an FCC decision ordering telecommunications companies

to add surveillance features demanded by the FBI. It denied challenges to

the FCC's decision on digital packet communications but held that law enforcement

agents must obtain a search warrant before they can "obtain packets from

which call content has not been stripped."

Carnivore involves FBI access to complete packets, and the content of

the communication is "stripped" only after the data is processed by the

system. Such a procedure is at odds with the legal requirements the court

announced today, according to David Sobel, general counsel of the Electronic

Privacy Information Center.

"Today's ruling will protect privacy in new modes of communication,"

EPIC's executive director, Marc Rotenberg said. "It will likely increase

dramatically the number of cases in which government agents must obtain

search warrants, particularly incases involving the Internet."

FCW staff contributed to this report.