EFFector       Vol. 13, No. 6       Aug. 4, 2000       [email protected]

  A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

 IN THE 154th ISSUE OF EFFECTOR (now with over 24,600 subscribers!):

    * EFF Position on FBI "Carnivore" Snooping System
         + EFF's House Judiciary Committee Testimony on Carnivore
         + Carnivore FAQ
    * EFF Welcomes New Board and Staff Members:
         + Prof. Pamela Samuelson, Boardmember
         + Cindy Cohen, Legal Director
         + Lee Tien, Senior Staff Attorney
         + John Marttila, Administrative Assistant
    * EFF Now Accepts PayPal Transactions for Memberships
    * DVD Update Bulletins Available on CAFE-News
    * Administrivia

  For more information on EFF activities & alerts: http://www.eff.org
    _________________________________________________________________


EFF Position on FBI "Carnivore" Snooping System

  Carnivore is an electronic communications surveillance system created
  by the FBI. It is essentially a PC that runs specialized surveillance
  software, attached to your Internet service provider's network -
  something like an e-mail and Web traffic wiretap. But, due to
  differences between Internet and telephone technologies, Carnivore
  exceeds FBI legal wiretapping authority.

 EFF's House Judiciary Committee Testimony on Carnivore

                               Statement of
                    The Electronic Frontier Foundation

                                before the
                     Subcommittee on the Constitution
                                  of the
                       Committee on the Judiciary,
                 United States House of Representatives:

                    The Fourth Amendment and Carnivore

                              July 28, 2000

  The Electronic Frontier Foundation (EFF) would like to submit comments
  to be included for the record regarding the Fourth Amendment* and the
  issues raised by the FBI's Carnivore system.

  EFF is a leading global nonprofit organization linking technical
  architectures with legal frameworks to support the rights of
  individuals in an open society. Founded in 1990, EFF actively
  encourages and challenges industry and government to support free
  expression, privacy, and openness in the information society. EFF is a
  member-supported organization and maintains one of the most-linked-to
  Web sites in the world.

  We wish to focus our comments on two specific issues. First, the use
  of pen registers as applied to traditional land-line telephone systems
  are not analogous to packet analyzers, such as Carnivore, that are
  used on the Internet. Second, we will touch on some of the harmful
  societal effects that will most certainly be wrought should the
  Carnivore system be implemented in the manner that the FBI wishes.

   The use of packet analyzers on the Internet captures much more information
   from an individual than does the use of pen registers and trap and trace
   devices used on traditional land-line telephone systems.

  Pen registers are devices used to record telephone numbers that are
  dialed from a telephone, whereas trap and trace devices are used to
  determine where a telephone call originated. Information gathered in
  this manner is strictly limited to only those phone numbers that are
  made either to or from the target's telephone number. No other
  personal information is harvested from the target of the
  investigation. The contents of the message and the routing or
  addressing information are independent of each other. Law enforcement
  cannot rely on pen registers or trap and trace warrants to get at the
  content of the calls.

  In reality, pen registers or trap and trace devices do not exist where
  the Internet is concerned, because the contents of the messages and
  the sender/receiver information are not kept separate. Because of
  this, the potential for law enforcement to over-collect information
  exists, and it is almost a certainty that law enforcement will receive
  more information from individuals than is authorized by a traditional
  pen register or trap and trace warrant. There are several ways that
  this can happen.

  When a person makes a telephone call on a traditional telephone
  system, a discrete and continuous segment of the telephone system is
  dedicated to that call, which is handled sequentially. The system
  first accepts the call routing information (dialed number, number and
  accounting information of the phone used to make the call, etc.),
  secondly establishes a connection, and only then opens the line to the
  content side of the call. The routing information remains wholly
  separate and severable from the call content, allowing law enforcement
  easy access to the one but not to the other. The Internet, however is
  a packet-switched network, meaning that when information is sent over
  the Net, it is broken into small packets, routed piecemeal over the
  Net and then reassembled at its final destination. Routing
  information, as well as content, are both contained in each individual
  packet, potentially giving law enforcement access to content as well
  as location routing information.

   The Carnivore system appears to exacerbate the over collection of personal
   information by collecting more information than it is legally entitled to
   collect under traditional pen register and trap and trace laws.

  The Carnivore system has received a lot of press recently, but the FBI
  has not been forthcoming about how the Carnivore system actually
  works. Civil liberties groups have often been quoted as noting that
  Carnivore is a "black box" leaving us to guess at its inner workings.

  We have been able to discover that Carnivore is a packet-sniffer, able
  to gather pen register and trap and trace information by sniffing each
  packet as it is routed along. It then filters out unwanted e-mail and
  other communications information from those of the target. This
  process is problematic for two very important reasons.

  First, traditional wiretaps, pen registers and trap and trace devices,
  are attached to specific telephone lines; law enforcement will only
  obtain the telephone numbers associated with the target's phone. With
  Carnivore in place, law enforcement has the potential ability to sift
  through all of the traffic going through a particular Internet Service
  Provider's (ISP) network. This far exceeds the scope of any wiretap
  laws we currently have in place.

  Second, analogizing pen register information from a traditional
  land-line phone system to the Internet is incorrect. The Carnivore
  system likely can capture content as well as numbers. E-mail addresses
  for example are personal to an individual rather than to a particular
  household. We don't know for sure, but it is possible that Carnivore
  has access to the subject line information of e-mail messages. Subject
  lines are content. For example, "leaving work at 5pm today - meet me
  at the bus stop", contains a lot of information about travel plans of
  a target on a particular day. Carnivore can also track other content
  information such as the URLs of web sites visited. Seeing the URLs not
  only give routing information but content as well. For example,
  someone visiting www.eff.org could presumably be interested in civil
  liberties issues online.

   Systems like Carnivore have the potential to turn into mass surveillance
   systems that will harm our free and open society.

  Currently, there is little if any public oversight over the FBI's use
  of its Carnivore system. The FBI has not allowed the ISP to inspect
  the device, nor have any of the advocacy groups been allowed to
  examine it. In fact, the ACLU has had to resort to filing a FOIA
  request to try to get at the source code. Allowing the FBI to install
  and use a device such as this unchecked by any public oversight,
  threatens the openness we enjoy and expect in our society. Robert
  Corn-Revere, in his testimony, noted that his case is sealed. We can't
  even look to that for guidance.

  Surveilling the Internet in this way leaves law enforcement with the
  potential to lower an individual's expectation of privacy as they use
  the Internet, particularly if we use the majority rule in Smith v.
  Maryland, that an individual has no legitimate expectation of privacy
  in the numbers that they dial on their telephones. This is so because
  law enforcement has so far successfully argued that pen registers on
  the Internet are analogous to those used on land-line telephone
  systems. Since routing information on the Net contains content, an
  expectation of privacy could end up being lowered for an individual's
  reading habits on the Net. Once individuals realize that they have a
  lowered expectation of privacy on the Net, they may not visit
  particular web sites that they may otherwise have visited.

  The Court in Smith v. Maryland noted law enforcement's penchant for
  trying to lower the bar on what is a legitimate expectation of
  privacy. The majority held that:

    situations can be imagined, of course, in which Katz' two-pronged
    inquiry would provide an inadequate index of Fourth Amendment
    protection. For example, if the Government were suddenly to
    announce on nationwide television that all homes henceforth would
    be subject to warrantless entry, individuals thereafter might not
    in fact entertain any actual expectation of privacy regarding their
    homes, papers, and effects. ...In such circumstances, where an
    individual's subjective expectations had been "conditioned" by
    influences alien to well-recognized Fourth Amendment freedoms,
    those subjective expectations obviously could play no meaningful
    role in ascertaining what the scope of Fourth Amendment protection
    was. In determining whether a "legitimate expectation of privacy"
    existed in such cases, a normative inquiry would be proper.

  In other words, law enforcement cannot "dumb down" society's
  subjective notions of what constitutes a legitimate expectation of
  privacy.

   Conclusion

  The use of pen registers as applied to traditional land-line telephone
  systems is fundamentally different than information that is collected
  using pen registers on the Internet. Allowing a system such as
  Carnivore to be used unchecked by law enforcement exacerbates the
  problem of over collection of data and has the potential to harm our
  open society.

    Respectfully,

                                                       Deborah S. Pierce
                                                          Staff Attorney
                                          Electronic Frontier Foundation
                   ___________________________________

 Carnivore FAQ

  Frequently Asked Questions (FAQ) and Answers about Carnivore

   What is Carnivore?

  Carnivore is an electronic communications surveillance system created
  by the FBI. It is essentially a personal computer that runs
  specialized surveillance software, attached to your ISP network.

   Who can be a target?

  Anyone suspected of a host of crimes, and anyone whose communications
  are suspected to be able to provide information that would aid an FBI
  investigation.

   What can Carnivore do?

  There are two kinds of warrant under which the FBI can monitor
  communications. The more wide-ranging is the Title III warrant, which
  enables the FBI to intercept the actual texts of e-mails. However,
  this kind of warrant is more difficult to obtain.

  Carnivore uses the weaker "trap and trace" and "pen register"
  warrants, but in a new and wider way. These warrants were designed for
  the phone system; to trace the number of origin of a phone call or a
  list of the numbers called from a phone. Carnivore uses these warrants
  to intercept the headers of all e-mails on the system, and then
  filters out those not "to" or "from" the surveillance target.

  Besides e-mails, Carnivore can also intercept instant-messaging
  systems, visits to Web sites and Internet relay chat sessions.

   Is Carnivore legal?

  Opinions differ. A recent Order involving Earthlink described by
  Robert Corn-Revere (although he does not reference Earthlink by name)
  in congressional testimony ruled that government agents could compel
  an ISP to install Carnivore; to date this is the only decision on
  public record, and no higher court has yet reviewed the decision.

  According to the Electronic Communications Privacy Act, electronic
  surveillance must be conducted in relation to a single person who is
  the target of a surveillance warrant. The problem with Carnivore is
  that it intercepts all messages on the ISP's network before filtering
  out those not from or to the surveillance target.

   What's the difference between pen registers and packet analyzers?

  Pen registers are devices used to record telephone numbers that are
  dialed from a telephone, whereas trap and trace devices are used to
  determine where a telephone call originated. Information gathered in
  this manner is strictly limited to only those phone numbers that are
  made either to or from the target's telephone number. No other
  personal information is harvested from the target of the
  investigation. The contents of the message and the routing or
  addressing information are independent of each other. Law enforcement
  cannot rely on pen registers or trap and trace warrants to get at the
  content of the calls.

  In reality, pen registers or trap and trace devices do not exist where
  the Internet is concerned, because the contents of the messages and
  the sender/receiver information are not kept separate. Because of
  this, the potential for law enforcement to over-collect information
  exists, and it is almost a certainty that law enforcement will receive
  more information from individuals than is authorized by a traditional
  pen register or trap and trace warrant. There are several ways that
  this can happen.

  When a person makes a telephone call on a traditional telephone
  system, a discrete and continuous segment of the telephone system is
  dedicated to that call, which is handled sequentially. The system
  first accepts the call routing information (dialed number, number and
  accounting information of the phone used to make the call, etc.),
  secondly establishes a connection, and only then opens the line to the
  content side of the call. The routing information remains wholly
  separate and severable from the call content, allowing law enforcement
  easy access to the one but not to the other. The Internet, however is
  a packet-switched network, meaning that when information is sent over
  the Net, it is broken into small packets, routed piecemeal over the
  Net and then reassembled at its final destination. Routing
  information, as well as content, are both contained in each individual
  packet, potentially giving law enforcement access to content as well
  as location routing information.

   So Carnivore is exacerbating the problem of over-collection of personal
   information by law enforcement on the Net, right?

  Yes. Because Carnivore is a packet-sniffer, it is able to gather pen
  register and trap and trace information by sniffing each packet as it
  is routed along. It then filters out unwanted e-mail and other
  communications information from those of the target. This process is
  problematic for two very important reasons.

  First, traditional wiretaps, pen registers and trap and trace devices,
  are attached to specific telephone lines; law enforcement will only
  obtain the telephone numbers associated with the target's phone. With
  Carnivore in place, law enforcement has the potential ability to sift
  through all of the traffic going through a particular Internet Service
  Provider's (ISP) network. This far exceeds the scope of any wiretap
  laws we currently have in place.

  Second, analogizing pen register information from a traditional
  land-line phone system to the Internet is incorrect. The Carnivore
  system likely can capture content as well as numbers. E-mail addresses
  for example are personal to an individual rather than to a particular
  household. We don't know for sure, but it is possible that Carnivore
  has access to the subject line information of e-mail messages. Subject
  lines are content. For example, "leaving work at 5pm today - meet me
  at the bus stop", contains a lot of information about travel plans of
  a target on a particular day. Carnivore can also track other content
  information such as the URLs of web sites visited. Seeing the URLs not
  only give routing information but content as well. For example,
  someone visiting www.eff.org could presumably be interested in civil
  liberties issues online.

   What are some of the larger societal effects of allowing a system like
   Carnivore to be put into place unchecked?

  Systems like Carnivore have the potential to turn into mass
  surveillance systems that will harm our free and open society.

  In addition to the Fourth Amendment and ECPA problems we have
  discussed, there are also potential First Amendment problems. Once
  people begin to realize the scope of the Carnivore system, they may
  begin to self-sensor their own speech so as not to bring their
  communications to the attention of law enforcement.

   How does the FBI defend their actions?

  The FBI believes that e-mail filtering before interception is not
  technically feasible, and that therefore intercepting unfiltered
  communications is justified. But there is no judicial, press or ISP
  oversight to make sure that the FBI will follow the law. In effect,
  they're simply asking us to trust them: an attitude which, according
  to the ACLU, violates federal wiretapping laws:

    "Currently, law enforcement is required to "minimize" its
    interception of non-incriminating communications of a target of a
    wiretap order. Carnivore is not a minimization tool. Instead,
    Carnivore maximizes law enforcement access to the communications of
    non-targets."

  The FBI also argues that as they don't see the contents of the e-mails
  they intercept, they are not violating innocent people's privacy. They
  argue that the software only intercepts the "To" and "From" lines of a
  header, never the subject line; but as they refuse publicly to release
  their source code, or to allow ISP oversight of their system, there is
  no way to verify that this is so. They describe Carnivore as a
  "diagnostic tool" with a "surgical" ability which provides "enhanced
  privacy protection", and which can automatically distinguish between
  those materials which are the subject of a lawful order and which are
  not. They also say that internal oversight, coupled with Department of
  Justice and Court jurisdiction, constitutes sufficient oversight to
  prevent not only abuse but also even the possibility of abuse.

   EFF's views on Carnivore

  Whether filtering before interception is feasible or not, Carnivore
  violates the ECPA; it also appears to violate the Fourth Amendment,
  and is believed by many to be manifestly illegal. It is a dangerous
  and intrusive tool, the responsible use of which depends solely on the
  good will of the FBI. Consequently, EFF supports the proposal to open
  the source code of Carnivore to public scrutiny, so that it is
  possible to understand more clearly what Carnivore can do, and what
  flaws it has, and EFF in general opposes the continued use of
  Carnivore.

    * Footnote: "The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and
    seizures, shall not be violated, and no Warrants shall issue, but
    upon probable cause, supported by Oath or affirmation, and
    particularly describing the place to be searched, and the persons
    or things to be seized."
    _________________________________________________________________


EFF Welcomes New Board and Staff Members

 Civil Liberties Group Creates All Star Team

  The Electronic Frontier Foundation (EFF) is pleased to announce the
  recent addition of a new board member, Professor Pamela Samuelson, and
  three new members of the staff, Legal Director Cindy Cohn, Senior
  Staff Attorney Lee Tien, and Administrative Assistant John Marttila.
  The expertise of all three prominent attorneys will be an asset to the
  civil liberties group in its continuing fight to protect every
  netizen's online rights, and the addition of John to an increasingly
  busy staff and growing organization will greatly help keep the
  organization running smoothly.

  "What an all-star team we've assembled," commented EFF Executive
  Director Shari Steele. "Cindy and Lee were instrumental to our success
  in the Bernstein v. State litigation, which declared source code as
  speech and freed up the U.S. export controls on encryption. And Pam is
  one of the most distinguished intellectual property attorneys in the
  country. EFF is so happy to have these great legal minds join us."

  Pamela Samuelson is a Professor of Law and of Information Management
  at the University of California at Berkeley and a world-renowned
  expert on cyberlaw and intellectual property. She is also a Director
  of the Berkeley Center for Law & Technology and provided the endowment
  for the Samuelson Law, Technology and Public Policy Clinic at Boalt
  Hall. She has written and spoken extensively on the challenges that
  digital technologies pose for existing legal regimes, particularly
  intellectual property law, and more recently has become interested in
  legal regulation of digital networked environments. Samuelson was
  named a MacArthur Fellow by the John D. and Catherine T. MacArthur
  Foundation in 1997.

  Cindy A. Cohn specializes in Internet-related civil litigation,
  including cases involving free speech, encryption, SPAM, domain names,
  privacy, unfair competition and defamation. In 1997 she was named one
  of California Lawyers of the Year by California Lawyer magazine for
  her work on Internet issues. She is a member of the San Mateo County
  Bar Association and of its legal technology section. Ms. Cohn
  graduated with honors from the University of Iowa and received her law
  degree from the University of Michigan Law School in 1989. Before
  entering private practice, she clerked for the United Nations Centre
  for Human Rights in Geneva, Switzerland.

  Lee Tien has practiced law for nine years, specializing in First
  Amendment cases. He was co-counsel to Cindy Cohn on the Bernstein case
  and worked in private practice on cases involving the First Amendment
  and cyberlaw. He has published such articles as "Who's Afraid of
  Anonymous Speech? Mcintyre and the Internet," which appeared in the
  Oregon Law Review (1996), and "Children's Sexuality and the New
  Information Technologies," which appeared in Social and Legal Studies
  (1994). Mr. Tien is a longtime user of technology, and is currently
  co-host of the Legal Conference on the online community at the WELL."
  He received his law degree from University of California at Berkeley
  in 1987 and his undergraduate degree from Stanford University in 1979.

  "I was astounded at the dedication Cindy and Lee showed in pursuing a
  difficult case over so many years and against such a powerful
  opponent. They showed they are a force to be reckoned with and our
  legal opponents had better watch out," said Brad Templeton, EFF's
  Board Chairman. "And Pam Samuelson is way ahead of the curve when it
  comes to cyberspace issues and the law. She'll keep EFF on that
  forefront with her."

  John Marttila, a long-time associate of EFF staffmembers Robin Gross
  and Patrick Norager, is (when wearing other "hats") a musician,
  conductor, and teacher. His and Patrick's musical projects, including
  UKUSA, may be heard in streaming MP3 format at Radio EFF:
     http://www.eff.org/radioeff

  EFF continues to pursue its long-term mission of educating the public,
  policymakers, and courts about the issues that arise when traditional
  expectations conflict with the new worlds created by computers and the
  Internet. The organization remains focused on civil liberties and
  civil responsibilities in cyberspace and continues to offer legal
  advice, referrals, and a large archive of current and historical
  online civil liberties information.

  Founded in 1990, the Electronic Frontier Foundation (www.eff.org) is a
  nonprofit organization that actively encourages and challenges
  industry and government to support free expression, privacy, and
  openness in the information society. EFF is a member-supported
  organization and maintains one of the most-linked-to Web sites in the
  world.

  For more information on the Electronic Frontier Foundation see:
     http://www.eff.org

  For information about joining us in our fight to protect your rights,
  see:
     http://www.eff.org/support
    _________________________________________________________________


EFF Now Accepts PayPal Transactions for Memberships

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  Thank you for your support! Without it, our work on the DVD cases,
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    _________________________________________________________________


DVD Update Bulletins Available on CAFE-News

  EFF's Campaign for Audiovisual Free Expression project is defending
  fair use, free speech and open software development from attacks by
  the entertainment industry's intellectual property trade associations
  in a number of precendent-setting legal cases. For those who would
  like more detailed and more frequent information about the progress of
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  Subscribers will get several DVD Update bulletins every week (except
  during major lulls in the litigation), as well as other CAFE-related
  materials from time to time.

  Here's full information on the list:

   EFF'S CAMPAIGN FOR AUDIOVISUAL FREE EXPRESSION (CAFE) ANNOUNCEMENTS LIST

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