Hindsight from The New Gun Week
August 1, 2000

How Will You Be Affected If E-mail Snooping Is Expanded
by Joseph P. Tartaro, Executive Editor

You may think you're not doing anything wrong, merely exercising your First Amendment rights when you send and receive communications on the Internet. You may even expect that you have the right to privacy as well as the right to say pretty much what you want.

But will you always be secure? And will things you might say in private, especially as a gunowner or gun rights activist, be taken down and used as evidence against you?

I know you think there are laws that restrict law enforcement to taping your conversations only if they have a court order linked to a specific investigation. But things are not always as them seem.

In fact, you may even approve of the idea of new federal laws that will facilitate the identification and prosecution of drug-lords, terrorists and other criminals.

There are a number of such new laws under consideration in Congress right now. They may even be promoted for the most benign reasons. But once the mechanisms are in place, everyone may be caught in the net.

Spreading the communications net so broadly is a lot like those tuna fishermen who net dolphins and porpoises. Once the nets are out there, the fishermen will harvest what they can. And even if they don't bring in the "innocent" fish, they cause them a lot of grief.

That's why the American Civil Liberties Union and other civil rights organizations, including gun groups, are expressing concerns about bills such as HR-2987 in the House and S-686, which passed the Senate by unanimous consent. The bills are supposed to target methamphetamine traffic, and there are others which target other drugs which can be manufactured chemically almost anywhere.

The ACLU claims there are a number of legal activities which could be affected by such government control and surveillance, and they believe gunowners would be among those who are in a threatened position.

You might think such warnings are premature, but here are some other details about surveillance technology that the government already has in use.

Carivore

Associated Press reported in early July that civil liberties and privacy groups have been railing against a new system designed to allow law enforcement agents to intercept and analyze huge amounts of e-mail in connection with an investigation.

The system, called "Carnivore," was first hinted at on April 6 in testimony to a House subcommittee. Now, according to AP, the FBI has it in actual use.

When Carnivore is placed at an Internet Service Provider (ISP), it scans all incoming and outgoing e-mails for messages associated with the target of a criminal probe.

In a letter addressed to two members of the House subcommittee that deals with Fourth Amendment search-and-seizure issues, the ACLU argued that the system breaches the Internet provider's rights and the rights of all its customers by reading both sender and recipient addresses, as well as subject lines of e-mails, to decide whether to make a copy of the entire message.

FBI Control

Further, while the system is plugged into the Internet provider's systems, it is controlled solely by the law enforcement agency. In a traditional wiretap, the tap is physically placed and maintained by the telephone company.

"Carnivore is roughly equivalent to a wiretap capable of accessing the contents of the conversations of all of the phone company's customers, with the 'assurance' that the FBI will record only conversations of the specified target," read the letter. "This 'trust us, we are the government' approach is the antithesis of the procedures required under our wiretapping laws."

Barry Steinhardt, associate director of the ACLU, said citizens shouldn't trust that such a sweeping data-tap will only be used against criminal suspects. And even then, he said, the data mined by Carnivore, particularly subject lines, is already intrusive.

"Law enforcement should be prohibited from installing any device that allows them to intercept communications from persons other than the target," Steinhardt said in an interview with the wire service.

"When conducting these kinds of investigations, the information should be restricted to only addressing information."

A spokeswoman for Rep. Charles T. Canady (R-FL), who heads the Constitution subcommittee, said that the congressman had no immediate comment on the letter.

In testimony to Canady's subcommittee, Robert Corn-Revere, a lawyer at the Hogan & Hartson law firm in Washington, said that he represented an Internet provider that refused to install the Carnivore system. The provider was placed in an "awkward position," Corn-Revere said, because the company feared suits from customers unhappy with the government looking into all the e-mail.

"It was acknowledged (by the government) that Carnivore would enable remote access to the ISP's network and would be under the exclusive control of government agents," Corn-Revere said.

Corn-Revere told the committee that current law is insufficient to deal with Carnivore's potential and that the Internet provider lost their court battle in part because of the Internet's connection to telephone lines, and that the law was stretched to cover the Internet as well.

Corn-Revere would not reveal the name of his client, and the client lost the case. He said that the FBI has been using Carnivore since early this year.

James X. Dempsey, senior staff counsel at the Center for Democracy and Technology, a think tank that has concentrated on privacy issues, said that the main problem with Carnivore is its mystery.

"The FBI is placing a black box inside the computer network of an ISP," Dempsey said. "Not even the ISP knows exactly what that gizmo is doing."

But Dempsey said that Internet providers contributed to the problem, by saying that current technology does not allow the Internet provider to sort out exactly what the government is entitled to get under a search warrant. The carriers complained that they had to give everything to the FBI.

"The service providers said they didn't know how to comply with court orders," Dempsey said. "By taking that position, they have hurt themselves, putting themselves into a box."

Marcus Thomas, who heads the FBI's Cyber Technology Section, told The Wall Street Journal that the bureau has about 20 Carnivore systems, which are PCs with proprietary software. He said Carnivore meets current wiretapping laws, but is designed to keep up with the Internet.

"This is just a specialized sniffer," Thomas told The Journal, which first reported details about Carnivore.

Agents Decode

Encrypted e-mail, done with an e-mail encoding program like PGP, still stays in code on Carnivore, and it's up to agents to decode it.

Dempsey has a possible solution to the problem, though one that's probably unlikely-show everyone what it does and how it does it, allowing Internet providers to install the software themselves.

"The FBI should make this gizmo an open-source product," he said. "Then the secret is gone."

But that doesn't seem in the cards as the Justice Department and many in Congress continue to seek ways of intercepting communications that might relate to an illegal enterprise. And it isn't just drug crimes that are part of the justification argument. Terrorism is another. Gun running is still another.

If this kind of legislation and government intrusion is cause for concern, you may want to log onto the ACLU website (www.aclu.org) and check the details. According to their analysis "teaching" or "disseminating information" about an illegal activity, could see you prosecuted if these types of laws continue to be adopted.

You can also contact your representative and get details on the whole issue. It doesn't seem as innocent as it sounds.

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The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.net

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