CARNIVORE: THE UNEASY RELATIONSHIP BETWEEN THE FOURTH AMENDMENT AND ELECTRONIC SURVEILLANCE OF INTERNET COMMUNICATIONS

Johnny Gilman

I. THE DEBATE SURROUNDING "[w] ays may some day be developed by which the CARNIVORE AND ITS PERCEIVED government, without removing papers from secret THREAT TO FOURTH AMENDMENT drawers, can reproduce them in court, and by RIGHTS AS IT APPLIES TO INTERNET which it will be enabled to expose to a jury the COMMUNICATIONS most intimate occurrences of the home."'6 More specifically, the flexible approach in delineating The Fourth Amendment to the United States the extent of privacy rights under the Fourth Constitution explicitly provides individuals the Amendment combined with the explosion of the right to be secure from unreasonable searches Internet as a unique communications medium and seizures.' This right to privacy is not absolute, has brought society to a crossroads where serious as courts have established certain exceptions to Fourth Amendment policy decisions must be de- the rule that all searches 7 and seizures must be termined. conducted with a court-issued 2 warrant. For exam- In today's world of electronic life, the advance- ple, the Supreme Court has found that while ment of the Internet has facilitated the unfortu- there is a right to privacy in the contents of tele- nate development of a new area of criminal activ- phone 3 calls, there is no right to privacy in tele- ity. 8 As a result, issues remain unresolved phone call records. 4 Indeed, the Constitution is concerning the application of constitutional celebrated in part because of the Founders' intent rights to online activities, especially the privacy that it be applied and construed in a flexible man- and security of Internet communications. 9 The ner with the ability to adapt to changing circum- fact that existing statutes governing electronic sur- stances. 5 However, technology ushered in with the veillance are ill-suited to the Internet is particu- new millennium has brought to fruition the fears larly pertinent when one considers Carnivore, the that Justice Brandeis articulated in 1928 that

1 U.S. CONST. amend. IV ("[T]he right of the people to against that which may become an evil. Id. "Time works be secure in their persons, houses, papers, and effects, changes, brings into existence new conditions and purposes. against unreasonable searches and seizures, shall not be vio- Therefore, a principal to be vital must be capable of wider lated, and no warrants shall issue, but upon probable cause, application than the mischief which gave it birth." Id. at supported by oath or affirmation, and particularly describing 472-73. the place to be searched, and the persons or things to be 6 Id. at 475. seized."). 7 See Fourth Amendment Issues Raised by the FBI's 'Carnivore' 2 See, e.g., Smith v. Maryland, 442 U.S. 735 (1979). Program: Oversight Hearing Before the Subcomm. on the Constitu- 3 See Katz v. United States, 389 U.S. 347, 358 (1967). tion of the House Comm. on theJudiciary, 106th Cong., at http:// 4 See Smith, 442 U.S. at 745-46. www.house.gov/judiciary/davi0724.htm (2000) (testimony of 5 See Olmstead v. United States, 277 U.S. 438, 472 (1928) Alan B. Davidson, Staff Counsel for the Ctr. for Democracy (Brandeis, J., dissenting). ("[G]eneral limitations on the and Tech.) [hereinafter Davidson]. powers of government.., do not forbid... meeting modern 8 See Fourth Amendment Issues Raised by the FBI's 'Carnivore' conditions by regulations which 'a century ago, or even half a Program: Oversight Hearing Before the Subcomm. on the Constitu- century ago, probably would have been rejected as arbitrary tion of the House Comm. on theJudiciary, 106th Cong., at http:// and oppressive.' Clauses guaranteeing to the individual pro- www.house.gov/judiciary/kerr0724.htm (2000) (statement tections against specific abuses of power, must have a similar of Dr. Donald M. Kerr, Assistant Dir. of the FBI) [hereinafter capacity of adaptation to a changing world."). Constitutional Kerr] (noting that criminals often use telecommunications protections should not be limited to guarding against ex- to plan and execute their activities). isting evils because to be perpetual, they must also protect 9 See Davidson, supra note 7. COMMLAW CONSPECTUS [Vol. 9

FBI's new Internet wiretapping system.' 0 Privacy vore, in particular, its effect on the Fourth rights are threatened because as the law stands Amendment's protection against unreasonable now, Internet communications receive minimal searches and seizures. First, this comment estab- Fourth Amendment protection.l" The tremen- lishes that Fourth Amendment jurisprudence re- dous advancements in Internet technology that stricts the government's ability to use surveillance encourage the widespread transfer of private data tools to intercept information contained in pri- have greatly affected law enforcement because vate communications. Next, this comment asserts more information is available that could prove to that Carnivore threatens to exceed the bounds of be valuable evidence in government investiga- permissible government surveillance of private In- tions.' 2 Moreover, advanced technology has al- ternet communications. Finally, this comment lowed law enforcement to develop improved concludes that Congress must redefine the bal- methods and devices to track electronic commu- ance between an individual's Fourth Amendment nications. 3 For example, with a court order, the rights and the needs of law enforcement by FBI can use Carnivore to monitor and record the strengthening the statutory framework pertaining Internet traffic of suspected criminals in order to to electronic surveillance of private Internet com- collect evidence. 14 Carnivore possesses the ability munications. to scan millions of e-mail messages per second- an alarming development because it may include II. THE FOURTH AMENDMENT AND access to more data than what is legally permissi- FEDERAL LAW ble under current law. 15 Meanwhile, the public has little knowledge of Carnivore's full capabilities A. Olmstead v. United States- Fourth Amendment and civil rights groups are demanding a public re- Implications of Wiretapping view of the system's source code.'" Specifically, ad- vocates of Fourth Amendment rights argue that 1. Olmstead Majority View electronic surveillance of Internet communica- tions should not come at the expense of constitu- Olmstead v. United States19 was the first case that tional rights to privacy. 17 Conversely, the FBI and discussed the permissible scope of wiretapping in DOJ rehash the argument that severe restrictions the Fourth Amendment context.20 The broad is- on Carnivore's uses will "make society suffer and sue that the Supreme Court considered was give criminals greater immunity than has been whether evidence obtained through telephone known heretofore." '8 wiretaps constituted a violation of the Fourth This comment examines the government's new Amendment. 2' In convicting Olmstead, the gov- electronic surveillance device known as Carni- ernment had relied on information obtained

10 See id. To date, Carnivore has not been implicated in 15 See Davidson, supra note 7. an actual case of a Fourth Amendment violation, but the 16 See D. I. Hopper, An Internet 'Carnivore,' threat of a potential violation is substantial enough to make ABcNEWS.coM, at http://www.abcnews.go.com/sections/ examining this issue worthwhile. tech/dailynews/carnivore0727.html (July 27, 2000) I See id. 17 See Katz, 389 U.S. at 358 ("[T]he concept of an 'inci- 12 See id. dental' search cannot readily be extended to include surrep- I See id. titious surveillance of an individual either immediately 14 See Fourth Amendment Issues Raised by the FBI's 'Carnivore' before, or immediately after, his arrest." (citing United States Program: Oversight Hearing Before the Subcomm. on the Constitu- v. Rabinowitz, 339 U.S. 56, 71-79 (1950) (Frankfurter, J., dis- tion of the House Comm. on the Judiciary, 106th Cong., at http:// senting))). Exceptions to Fourth Amendment protections in- www.house.gov/judiciary/corn0724.htm (2000) (testimony clude searches and seizures conducted incidental to the ar- of Robert Corn-Revere, Partner, Hogan & Hartson, LLP) rest or in hot pursuit. Katz, 389 U.S. at 358. [hereinafter Corn-Revere] (expressing concern that Carni- 18 Olmstead, 277 U.S. at 468; see also Kerr, supra note 8 vore will be able to capture the content or headers of e-mail (noting that lawful electronic surveillance is an important messages from both the targeted user and other peripheral tool because it allows law enforcement entities to collect and users exceeding the permissible scope of a trap and trace or- present evidence of the suspect's own words). der); see also Davidson, supra note 7. Proponents argue that 19 277 U.S. 438. using Carnivore to obtain such information as e-mail con- 20 Olmstead, 277 U.S. at 438. tents or headers is analogous to a pen register or trap and 21 Id. at 455-56. Private telephone conversations between trace device that can be obtained under a low legal standard, the defendant and others led to a conviction for conspiring but opponents argue it is equivalent to a wiretap, which re- to violate the National Prohibition Act. The defendants were quires a showing of probable cause and includes judicial convicted of unlawfully possessing, transporting, importing oversight. and selling intoxicating liquors. Defendants ran a lucrative 20011 Electronic Surveillance of Internet Communications from telephone conversations intercepted with about the wiretaps that the government officials 22 3 wiretaps. The intercepted phone conversations had used to intercept their conversations. 0 In revealed the nature of the defendant's illegal ac- contrast to previous Fourth Amendment cases, tivity, including the identity of partners, subordi- Olmstead presented a situation in which there was nates and customers.23 The information obtained no actual entry into a defendant's private home by government officials formed the basis for an in- or office, and no tangible items were seized or 3 dictment and subsequent conviction for criminal searched. ' 24 conspiracy. Based on the distinction that telephone conver- Chief Justice Taft, writing for the Olmstead ma- sations are unlike pieces of mail, which are tangi- jority, recounted the basis of Fourth Amendment ble personal effects and to which the Fourth case law.25 Chief Justice Taft's discussion included Amendment provides protections, the Olmstead Weeks v. United States,26 in which the Court held Court held that the evidence obtained by wiretap- that a search or seizure without a warrant violates ping defendants' telephones did not violate the the Fourth Amendment. 27 Most evidence ob- Fourth Amendment.3 2 The Court refused to find tained without a warrant is inadmissible and must that the wiretaps involved a search or seizure be- be returned to the aggrieved party.28 Without cause there was no actual entry onto defendant's such a rule, the Weeks Court held that the Fourth private property.3 3 The Court did note, however, Amendment would be meaningless and ineffec- that Congress has the power to make a law ban- tive in protecting individual liberties. 29 The Olm- ning the admission into evidence of intercepted stead Court considered this rule in light of the fact telephone conversations.3 4 Courts have no such that the defendants had made continued and vol- power and in the absence of such a law, they untary use of their telephones without knowing could not find the government's actions in Olm- operation with sales exceeding $176,000 per month or $2 298 (1921) (holding that evidence taken from the defen- million per year. Olmstead was the general manager of the dant's private office during a bogus friendly visit constituted operation, netting half of the proceeds for himself. The oper- a violation of the Fourth Amendment and therefore was ation was based in Seattle, WA, and made use of three tele- inadmissible into evidence). The holding in Gouled was lim- phone lines to receive and fill orders. ited by Olmstead to the particular set of facts presented be- 22 Id. at 456-57 (noting that "[s]mall wires were inserted cause the bogus entry was equivalent to a forced entry. Olm- along the ordinary telephone wires" connected to the defen- stead, 277 U.S. at 463. dant's various telephones, and the wiretaps were put into 29 Weeks, 232 U.S. at 383; Olmstead, 277 U.S. at 463 (not- place "without trespass upon any property of the defend- ing that the underlying reason for this rule stems from the ants"). historical purpose of the Fourth Amendment to protect 23 Id. at 457. against abuse of government power regarding the search and 24 Id. seizure of an individual's home, person, papers and effects). 25 Id. at 458-59 (quoting Justice Bradley in Boyd v. 30 Olmstead, 277 U.S. at 462. United States, 116 U.S. 616, 621-22 (1886), who noted that 31 Id. at 464. This presented a novel issue because, textu- in the absence of an actual search and seizure, the Fourth ally, the Fourth Amendment concerns the search and seizure Amendment is not violated by compelling the production of of material things. private effects to support a criminal charge). 26 232 U.S. 383 (1914). 32 Id. The Court refused to extend Fourth Amendment 27 Olmstead, 277 U.S. at 460 (discussing Weeks, 232 U.S. at protection to telephone wires because the wires are not part 383 and the approval it gave to Justice Field's opinion in Ex of an individual's private effects. In this regard, the Court parteJackson, 96 U.S. 727, 733 (1877), which held that the takes a literal approach to the construction of the Fourth Fourth Amendment's requirement for a warrant supported Amendment by relying on its holding in Carroll v. United by oath and affirmation applies to sealed pieces of mail). States, 267 U.S. 132 (1925), that "the Fourth Amendment is 28 Id. at 460 (citing Weeks, 232 U.S. at 383); see also to be construed in the light of what was deemed an unrea- Silverthorne Lumber Co. v. United States, 251 U.S. 385 sonable search and seizure when it was adopted." Caroll, 267 (1920) (stating that seized materials must be returned when, U.S. at 149. Chief Justice Taft wrote that the scope of the following an arrest, government officials searched and seized Fourth Amendment cannot exceed the "practical meaning of materials in violation of the Fourth Amendment); Amos v. houses, persons, papers, and effects, or so to apply the words United States, 255 U.S. 313 (1921) (holding that private search and seizure as to forbid hearing or sight." Olmstead, property seized by government officials in the absence of a 277 U.S. at 465. See also Hester v. United States, 265 U.S. 57 warrant should be returned and could not be used as evi- (1924) (holding that while officers of the law trespassed onto dence); Agnello v. United States, 269 U.S. 20 (1925) (hold- the defendant's property, "there was no search of person, ing the admission into evidence of material obtained without house, paper, or effects," and thus no Fourth Amendment a warrant at the defendant's home located several blocks violation). from the place of arrest violated the Fourth Amendment be- 11 Olnstead, 277 U.S. at 464 ("The evidence was secured cause the search and seizure at the defendant's home was not by the use of the sense of hearing and that only.") incidental to the arrest); Gouled v. United States, 255 U.S. M Id. at 465-66. COMMLAW CONSPECTUS [Vol. 9

stead to be in violation of the Fourth Amend- upon [the Fourth Amendment]." 43 In this light, ment.35 Therefore, Chief Justice Taft reasoned the wiretapping in Olmstead presented only one of that the Court could not expand unilaterally the many new methods by which the government Fourth Amendment's scope to include searches might be more capable of infringing on personal and seizures of intangible material that is freely liberties.44 Therefore, according to Brandeis' dis- available outside the home.3 6 The ultimate result sent in Olmstead, courts must fulfill the Founders' in Olmstead was a declaration that, within the rule primary goal of preserving the essence of the set out in Weeks v. United States, using a wiretap Fourth Amendment's protection of personal lib- 3 7 without a warrant is constitutional. erties against government infringements, no mat- 45 ter what their form. 2. Olmstead Dissent Brandeis also argued that when considering the degree of Fourth Amendment protection to af- Justice Brandeis dissented from the majority's ford telephone conversations, such conversations view in Olmstead and wrote that the government's are analogous to pieces of mail.46 Both telephone wiretapping constituted an unreasonable search and mail services are publicly available means of and seizure in violation of the Fourth Amend- communication, however, "the one is visible, the 38 ment. Justice Brandeis cast the issue as whether other invisible; the one is tangible, the other in- the wiretapping constituted a search and seizure tangible; the one is sealed, and the other un- 39 within the meaning of the Fourth Amendment. sealed, but these are distinctions without a differ- An affirmative answer would make wiretapping, in ence." 47 Therefore, to preserve the principles the absence of a warrant, unlawful and would underlying the Fourth Amendment and to main- have the effect of making evidence obtained with tain its effectiveness, courts should find a violation 4 a wiretap inadmissible.' 1 Justice Brandeis wrote of Fourth Amendment rights whenever the gov- that the Founders designed the Constitution to ernment intrudes unjustifiably on an individual's last for eternity and intended it to have the "ca- privacy, even when there is no physical seizure of 4 pacity of adaptation to a changing world." ' Bran- personal effects.48 Brandeis' dissent stressed that deis reasoned that the Founders knew that unan- an infringement of Fourth Amendment rights is ticipated threats to constitutional rights would inexcusable even when government is performing arise; therefore, they had intended that the Con- law enforcement duties because "[e]xperience stitution be flexible so that it could remain an ef- should teach us to be most on our guard to pro- fective protection against both present and future tect liberty when the government's purposes are threats to individual liberties. 42 In keeping with beneficent."'49 If the cost is the loss of individual the Founder's intent, Justice Brandeis stressed liberties, Brandeis believed that it is better that that Supreme Court precedent "in giving effect to some criminals go free rather than all criminals the principle underlying the Fourth Amendment, be caught by government encroachment on 50 has refused to place an unduly literal construction Fourth Amendment rights.

35 Id. at 466. the principles underlying the Fourth Amendment "apply to 36 Id. (holding that telephone use involves passing all invasions on the part of the government ... of the sancti- messages outside the home and thus is outside the scope of ties of a man's home and the privacies of life" (quoting Boyd Fourth Amendment protection). v. United States, 116 U.S. at 616)). 37 Id. at 465. 44 Id. at 473 (Brandeis, J., dissenting). 38 Id. at 478 (Brandeis, j., dissenting). 45 Id. at 475 (Brandeis, J., dissenting) (relying on Boyd, 39 Id. at 471-72 (Brandeis, J., dissenting). 116 U.S. at 616). 40 Id. (Brandeis, J., dissenting). 46 Id. (Brandeis, J., dissenting). 47 Id. (Brandeis, 41 Id. at 472-73 (Brandeis, J., dissenting) (relying on J., dissenting). 48 See id. (Brandeis, J., dissenting) (citing Weems v. United States, 217 U.S. 349, 373 (1910), for the Silverthorne idea that the Constitution "must be capable of wider applica- Lumber Co. v. United States, 251 U.S. 385 (1920) (holding that an tion" and "should not, therefore, be necessarily confined to officer's reading of a private paper is a Fourth the form that evil had theretofore taken"). Amendment violation even though the officer did not seize 42 Id. (Brandeis, J., dissenting) ("Time works changes, or touch the paper, and therefore the paper is inadmissible as evidence)). brings into existence new conditions and purposes . . . [So] 49 Id. at 479 (Brandeis, I., dissenting). our contemplation cannot be only of what has been but of 51 Id. (Brandeis, J., dissenting). what may be." (quoting Weenu, 217 U.S. at 373)). 43 Id. at 474, 476 (Brandeis, J., dissenting) (noting that 2001l Electronic Surveillance of Internet Communications

Justice Butler also dissented in Olmstead, finding area requiring the government to obtain a war- the government's use of a wiretap without a war- rant before recording telephone conversations rant to be a violation of the Fourth Amendment. 5 1 made from the booth. 60 The second issue was Justice Butler saw the issue as whether the govern- whether, under the Fourth Amendment, physical ment could, in keeping with the Fourth Amend- intrusion of a protected area is a necessary ele- ment, intercept private telephone conversations ment in establishing an unconstitutional search without a warrant. 52 In reaching this conclusion, and seizure. 6' The Court stated that "the Fourth Justice Butler rejected the government's claim Amendment protects people, not places," and that wiretaps do not constitute a search for evi- "what [Katz] seeks to preserve as private, even in dence. 53 Justice Butler interpreted liberally the an area accessible to the public, may be constitu- Fourth Amendment's protection of individual lib- tionally protected. ' 62 The government claimed erties, finding that wiretaps violate individual con- that because the telephone booth was constructed 54 stitutional rights. of transparent glass, Katz was as visible inside as he would have been outside the booth. 63 The B. Katz v. United States: Warrantless Wiretaps Court found this assertion irrelevant because the Violate the Fourth Amendment purpose of entering the enclosed telephone booth was to preserve the privacy of the spoken Nearly forty years passed before the Supreme word and not to prevent visibility.64 Moreover, the Court reconsidered its position in Olmstead on the Court held that a person carries with them into a permissible scope of wiretapping under the public telephone booth the full panoply of Fourth 65 Fourth Amendment. In Katz v. United States,55 peti- Amendment protections. tioner was indicted for violating a federal statute The government also asserted that even if a per- forbidding the transmission of wagering informa- son in a public telephone booth carries with them tion by telephone. 56 The conviction turned on the Fourth Amendment rights, these rights were not government's introduction of evidence obtained implicated because the recording device did not by using an electronic listening and recording de- involve a physical intrusion of the booth. 66 Based vice. 57 The recordings were of Katz's side of tele- on Olmstead, this argument stated that Fourth phone conversations made from a public tele- Amendment protections are not implicated when 67 phone booth. 58 Katz presented two vital questions there is no search or seizure of tangible effects. for Supreme Court review. 59 One issue was In finding no merit to this argument by the gov- whether, under the Fourth Amendment, a public ernment, the Katz Court stated that "the under- telephone booth is a constitutionally protected pinnings of Olmstead and Goldman have been so

51 Id. at 488 (Butler, J., dissenting). 58 Katz, 389 U.S. at 348. 52 Id. at 486 (Butler, J., dissenting). 59 Id. at 349. 53 Id. at 488 (Butler, J., dissenting). 60 Id. 54 Id. at 487-88 (Butler, J., dissenting) (citing Boyd, 116 61 Id. U.S. at 616, and stating that the reason behind the precedent 62 Id. at 351 (discussing the application of the protec- of a broad interpretation is that the literal meaning of words tions provided by the Fourth Amendment). within the language of the Fourth Amendment cannot fully 63 Id. at 352. represent the intended scope or policy). 64 Id. 55 389 U.S. 347. 65 See id. The Fourth Amendment protects the privacy of 56 Id. at 348. The Court considered 18 U.S.C. § 1084 (1994), which provides: conversations made in a public telephone booth because, (a) whoever being engaged in the business of betting or "[w]herever a man may be, he is entitled to know that he will wagering knowingly uses a wire communication facility remain free from unreasonable searches and seizures." Id. In- for the transmission in interstate or foreign commerce terpreting the Constitution to say otherwise "is to ignore the of bets or wagers or information assisting in the placing vital role that the public telephone has come to play in pri- of bets or wagers . . . shall be fined no more than vate communication." Id. $10,000 or imprisoned not more than two years, or both. 66 Id. (relying on Olmstead, 277 U.S. 438 because the re- 18 U.S.C. § 1084. cording device was attached to the top of the telephone 57 Katz, 389 U.S. at 348; see generally Katz v. United States, booth, and at no time did government officers or their equip- 369 F.2d 130 (9th Cir. 1966) (affirming the conviction and ment enter the booth while Katz was inside). holding that the mode by which the recordings were ob- 67 Id. at 352-53 ("Neither ... hold the Fourth Amend- tained did not violate the Fourth Amendment's protection ment to have been violated... unless there has been an offi- against unreasonable searches and seizures because there was cial search and seizure of his person ... or his tangible mate- no physical intrusion into the phone booth used by Katz). rial effects." (referring to Olmstead, 277 U.S. at 466)). COMMLAW CONSPECTUS [Vol. 9

eroded... [that they] can no longer be regarded warrant to search and seize Katz's telephone con- 7 as controlling. 68 Subsequent cases "have ex- versations using an electronic recording device. 1 pressly held that the Fourth Amendment governs The fact that government agents failed to get this not only the seizure of tangible items, but extends kind of warrant made the search and seizure an as well to the recording of oral statements over- unjustified violation of Katz's Fourth Amendment heard without any technical trespass."69 This proc- rights. 75 Therefore, the Court held that the re- lamation makes the presence or absence of a cording of Katz's telephone conversations consti- physical intrusion irrelevant to the consideration tuted a violation of the Fourth Amendment and 76 of whether a search or seizure violates the Fourth overturned his conviction. Amendment.70 As a result, the Court held that re- cording Katz's phone conversations made from C. What Does the Law Provide on Government the public telephone booth "constituted a search Use of Electronic Surveillance? and seizure within the meaning of the Fourth ' 71 Amendment." In so doing, the Court reasserted 1. Title III of the Omnibus Crime Control and Safe that it was irrelevant to constitutional considera- Streets Act of 196877 tions that the recording device did not physically 72 intrude the area within the telephone booth. Title III of the Omnibus Crime Control and Having found that the recording of Katz's tele- Safe Streets Act of 1968 set forth procedures by phone conversations constituted an unlawful which government officials could obtain federal search and seizure, the next issue that the Court court authorization for real-time interception of addressed was whether the government had com- the content of electronic communications. 78 Con- plied with the Fourth Amendment in conducting gress wanted to enact strict limitations on the use the search and seizure. 73 In its analysis, the Court of electronic surveillance to ensure the protection noted that a magistrate could have issued a lawful of individual privacy rights. 79 Under Tide III, au-

68 Id. at 353. per se unreasonable under the Fourth Amendment). 69 Id. (citing Silverman v. United States, 365 U.S. 505, 76 Katz, 389 U.S. at 359; see also id. at 361 (Harlan,J., con- 511 (1920)). curring). When considering the degree of Fourth Amend- 70 See id. ment protection afforded to a defendant, courts should con- 71 Id. sider whether the person had an expectation of privacy and 72 See id. whether society would consider that expectation reasonable. 73 Id. at 354. The government admitted into evidence six Applying this to the present case reveals that Katz had (1) an recordings of Katz's end of the telephone conversations in expectation of privacy while using the public telephone which the content involved "the placing of bets and the re- booth and (2) that this expectation was reasonable. Moreo- ceipt of wagering information." Id. at 354 n.14. ver, government can be guilty of infringing upon privacy by 74 Id. To maintain safeguards against government in- both electronic and physical intrusions. Id. See also id. at 363 fringements upon personal liberties requires the government (White, J., concurring). But see id. at 366 (Black, J., dissent- to notify the magistrate of the need for the search, specify the ing) (arguing, in accordance with Olmstead, that a conversa- plan of action, and indicate the precise evidence to be tion is not tangible and not within the accepted meaning of searched and seized. Here the search and seizure was of a the Fourth Amendment's protections against unreasonable narrow enough scope that the magistrate could have consti- searches and seizures). tutionally granted such permission. Id. "A federal court may 77 Title Ill, Pub. L. No. 90-351, 82 Stat. 212 (1968) (codi- empower government agents to employ a concealed elec- fied as amended in scattered sections of 18 U.S.C.). This stat- tronic device 'for the narrow and particularized purpose of ute is commonly known as the federal wiretap statute. See 18 ascertaining the truth.' " Id. at 355 (quoting Osborn v. U.S.C. § 2510(8) (defining the contents of communications United States, 385 U.S. 323, 329 (1966)). The Katz Court to be "any information concerning the substance, purport, or noted that the purpose of requiring court permission is to meaning of that communication") ensure that searches and seizures do not extend beyond what 78 See 18 U.S.C. §§ 2510-2522 (1994 & Supp. V 1998); is necessary under the circumstances. Id. (citing Berger v. see also id. at § 2511 (providing a civil cause of action against New York, 388 U.S. 41, 87 (1967)). See also FED. R. CRiM. P. any person who violates the wiretap law); Annotation, When 41 (d). See generally Ker v. State of California, 374 U.S. 23, 37 Do Facts Shown As ProbableCause For Wiretap Authorization Under (1963) (holding that when the government has authorization 18 U.S.C.A. § 2518(3) Become "Stale," 68 A.L.R. FED. 953 to conduct a search and seizure, advance notice to the per- (1984); Janet Boeth Jones, Annotation, Propriety of Monitoring son subject to the search and seizure is not necessary in cases Telephone Calls To or From Prison Inmates Under Title III of Omni- where such notice would destroy the government's opportu- bus Crime Control and Safe Streets Act ProhibitingJudicially Unau- nity to search or seize evidence). thorized Interception of Wire or Oral Communications, 61 A.L.R. 75 Katz, 389 U.S. at 356; see also Wong Sun v. United FED. 825 (1983); 74 AM. JUR. 2n Telecomm. § 212 (1974). States, 371 U.S. 471, 481 (1963) (holding a search and 79 See 74 Am. JUR. 2) Telecomm. § 212 (1974) (citing seizure executed in the absence of proper authorization is Gelbard v. United States, 408 U.S. 41 (1972)). 2001] Electronic Surveillance of Internet Communications thorization to intercept the contents of electronic 2. Amending Title III: The Electronic communications using a wiretap is only available Communications Privacy Act of 1986 ("ECPA ")86 for certain enumerated offenses.80 Government agents seeking an order to intercept the contents To understand why Congress found it necessary of electronic communications must include in the to amend Title III by passing the ECPA, one must wiretap application a statement of the facts justify- examine how the Fourth Amendment fared ing the issuance of the order, a statement showing under Tide III. In United States v. New York Tele- that other investigative means have been em- phone Co.,8 7 the Court stressed the limitations on ployed and the period of time that the order will the collection of information through pen regis- be in force."' The statute also requires that gov- ters. It also considered the issue of whether a fed- ernment agents make a showing of probable eral district court could order a telephone com- cause before a court can authorize the intercep- pany to provide assistance to federal law tion of the contents of electronic communica- enforcement agents in order to implement a tions. 82 The court's order must identify the spe- court-authorized pen register.88 Pen register de- cific communications to be intercepted, the vices "disclose only the telephone numbers that 89 surveillance target, the location of the target's In- have been dialed." Surveillance using pen regis- ternet Service Provider ("ISP") and the particular ter devices cannot reveal the contents of commu- government agency authorized to conduct the in-' nications, the identities of the parties involved terception.8 3 Courts also can require the govern- "[or] whether the call was even completed." 90 The ment to provide regular progress reports detailing Court held in New York Telephone Co. that Title III the type of data collected and any future need for (the federal wiretap statute) does not govern the continued use of the wiretap. 84 Both the exclu- use of pen registers because these devices do not sionary rules of the Fourth Amendment and the intercept the contents of communications. 91 wiretap statute found in Title III prohibit the use In Smith v. Maryland,92 the Supreme Court con- of evidence obtained in violation of the proce- sidered whether a pen register constituted a dures for intercepting the contents of electronic search within the meaning of the Fourth Amend- 8 5 communications. ment. There, the Court held "that there is no con-

80 See 18 U.S.C. §§ 2510-2522; see also Kerr, supra note 8 84 Id. at § 2518(6). (explaining that a federal magistrate cannot authorize the 85 See id. at § 2518(10). use of a wiretap, and interception of electronic communica- 86 Pub. L. No. 99-508, 100 Stat. 1848 (codified in scat- tions is limited to specific enumerated felonies). tered sections of 18 U.S.C.) 81 See 18 U.S.C. § 2518(1) ("Each application for an or- 87 434 U.S. 159 (1977). der authorizing or approving the interception of a[n] ... 88 Id. at 165. The U.S. District Court for the Southern electronic communication ... shall be made in writing upon District of New York authorized the FBI to install a pen regis- oath or affirmation to a judge of competent jurisdiction."); ter on two telephone lines and directed the New York Tele- see also Kerr, supra note 8 (noting that electronic surveillance phone Co. to assist in the installation and implementation of has played a role in convicting more than 25,600 felons over the court's order. The order was based on probable cause the past thirteen years). that the telephones were being used in conjunction with an 82 See 18 U.S.C. § 2518(3) (requiring government agents illegal gambling enterprise. The telephone company's refusal to show probable cause in three different contexts). The to comply with the court's order lead to subsequent litiga- judge may authorize interception of wire, oral or electronic tion. Id. communications if the judge determines that: 89 Id. at 167 (finding that a pen register decodes tele- (a) there is probable cause for belief that an individual is phone numbers by "responding to changes in electrical volt- committing, has committed, or is about to commit a par- age caused" by the dialing of numbers on a telephone). ticular offense enumerated . . . ; (b) there is probable 90 Id. (noting that pen registers do not hear sound); see cause for belief that particular communications concern- also Brown v. Waddell, 50 F.3d 285, 292 (4th Cir. 1995) (fol- ing that offense will be obtained through such intercep- lowing the Court's holding in New York Tel. Co. and reassert- tion; (c) normal investigative procedures have been ing that the only capability of the pen register and trap and tried and have failed or reasonably appear to be unlikely trace devices is to intercept dialed telephone numbers). to succeed if tried or to be too dangerous; (d) ... there 91 New York Tel. Co., 434 U.S. at 167. The case's holding is probable cause for belief that the facilities from which, applies to trap and trace devices as well because of the synon- or the place where, the wire or oral communication are ymous nature of the devices. See also 18 U.S.C. § 2518(1) to be intercepted are being used, or are about to be (governing the authorization of the interception of a wire or used, in connection with the commission of such of- oral communication); S. REP. No. 90-1097, at 90 (1968), re- fense. printed in 1968 U.S.C.C.A.N. 2112 (detailing Congress's in- Id. at § 2518(3). tent that the coverage of Title III excludes pen registers). 83 Id. at § 2518(4). 92 442 U.S. 735. COMMLAW CONSPECTUS [Vol. 9 stitutionally protected privacy interest in the num- was unreasonable. 10 Consequently, the govern- bers one dials to initiate a telephone call."93 ment's use of the pen register was not a search Adhering to Katz, the Court stated that the thresh- within the meaning of the Fourth Amendment old question was whether the alleged criminal sus- and no warrant was necessary. 10 1 The Court's pect had a reasonable expectation of privacy that holding in Smith, allowing the interception of the the government unlawfully invaded by using a digits of incoming and outgoing telephone calls, pen register. 94 The government's installation of serves as justification for the relatively low stan- the pen register did not invade any constitution- dard governing privacy protections for pen regis- ally protected area.95 Furthermore, the device did ter and trap and trace devices.10 2 More impor- not capture the content of Smith's telephone tantly, the Court's decision in Smith created calls. 9 6 Therefore, because no protected area had distinct classes of communications and afforded been invaded, the ultimate question was whether less Fourth Amendment protection to noncon- 0 3 Smith had a reasonable expectation of privacy in tent-based communications.1 the numbers he dialed on his telephone.9 7 The Responding to these developments in Fourth Court reasoned that there was no reasonable ex- Amendment jurisprudence, Congress passed the pectation of privacy in the numbers dialed on a ECPA with the intention that this new law would telephone because telephone companies rou- create a balance "between the privacy of citizens tinely record numbers dialed for business pur- and the needs of law enforcement" that had be- poses. 98 Moreover, because individuals voluntarily come tipped too far in favor of the govern- provide the telephone company with the dialing ment. 1 4 Improving electronic technologies had information, "it is too much to believe that tele- created new methods of electronic surveillance, phone subscribers . . .harbor any general expec- and the increasing use of electronic communica- tation that the numbers they dial will remain se- tions, including the transportation of personal cret."99 As a result, even if Smith did have an data, had created more opportunities for govern- expectation of privacy regarding the numbers ment to infringe upon constituti*onally protected that he dialed on his telephone, this expectation privacy rights. 10 5 Congress enacted the ECPA to

93 Id. While investigating a robbery and subsequent TO RECENT INTERNET DENIAL OF SERVICE ATrACKS AND TO Es- threatening phone calls, police installed a pen register on TABLISH MEANINGFUL PRIVACY PROTECTIONS, at http:// Smith's telephone line. Evidence gathered by the pen regis- www.cdt.org/sectirity/000404amending.shtml (Apr. 14, ter formed the basis for a warrant to search Smith's home. 2000) [hereinafter AMENDING THE PEN REGISTER]. Further evidence gathered during the search lead to Smith's 104 Corn-Revere, supra note 14 (quoting The Office of arrest. At trial, Smith argued that the evidence gathered by Technology Assessment that "[o]vertime, the cumulative ef- the pen register should be inadmissible because it was ob- fect of widespread surveillance for law enforcement, intelli- tained without a search warrant. Smith appealed his subse- gence, and other investigatory purposes could change the cli- quent conviction on the basis that the pen register informa- mate and fabric of society in fundamental ways"). tion had been improperly admitted into evidence. Id. at 737. 1(5 See S. REP. No. 99-541, at 2 (1986), reprinted in 1986 94 See id. at 740. U.S.C.C.A.N. 3555. Title I of the ECPA amends Chapter 119 95 Id. at 741. of Title 18 governing the interception of communications "to 96 Id. (finding that pen registers, which do not capture bring it in line with technological developments and changes content like wiretaps, require a different analysis of the con- in the structure of the telecommunications industry." The stitutional issues); see also New York Tel. Co., 434 U.S. at 167. Fourth Amendment and the Internet: Oversight Hearing Before the 97 See Smith, 442 U.S. at 742. Subcomm. on the Constitution of the House Comm. on the Judiciay, 98 Id. (finding that telephone companies need access to 106th Cong. 71, 76 (2000) (statement of Gregory T. Nojeim, phone numbers to complete calls through their switchboard, Legislative Counsel, Am. Civil Liberties Union, Washington tabulate billing records for long-distance toll calls and service Nat'l Office) [hereinafter Nojeim] (citing DOJ studies that telephone lines, which includes facilitating law enforcement find nearly 75% of Americans oppose wiretapping and that functions). the loss of personal privacy in the new millennium is the pre- 99 Id. at 743. The site from where the call is placed is dominant concern of Americans), available at http:// irrelevant because it only reflects a desire to protect the pri- www.aclu.org/congress/1040600a.html; AMENDING THE PEN vacy of content and not dialing information. REGISTER, supra note 103. Government agents use pen regis- 100 Id. (noting that one cannot have a reasonable expec- ter and trap and trace devices about ten times more fre- tation of privacy in the information voluntarily given to third quently than wiretaps. For instance, in the year 1996, 4,569 parties (citing United States v. Miller, 425 U.S. 435, 442-45 pen register and trap and trace orders were obtained by the (1976))). DOJ covering over 10,520 telephone lines. AMENDING THE 101 See id. at 745-46. PEN REGISTER, supra note 103. See also Corn-Revere, supra 102 18 U.S.C. § 3127(3)-(4). note 14. In the 1970s, the Church Committee investigations 103 See THE CENTER FOR DEMOCRACY & TECH., AMENDING documented the FBI's unjustified use of wiretaps on people THE PEN REGISTER AND TRAP AND TRACE STATUTE IN RESPONSE like Dr. Martin Luther King, Jr., Congressman Harold Coo- 20011 Electronic Surveillance of Internet Communications

preserve the Fourth Amendment protection ernment agents must obtain a court order based against unreasonable searches and seizures of an on probable cause."l 6 However, government individual's electronic communications. 0 6 Con- agents may obtain, without notice to the affected gress defined the term "electronic communica- party, the content of stored electronic communi- tion"10 7 in the ECPA broadly to provide statutory cations with a search warrant issued by a federal protections for individual Fourth Amendment magistrate rather than a federal district court rights against future advancements in technol- judge.' 17 Therefore, the statutory protections pro- 0 8 ogy. 1 vided to real-time electronic communications in Despite congressional intent to increase protec- the ECPA are irrelevant once the communication tions for electronic communications,' 0 9 the ECPA becomes stored data."" Law enforcement officials does not offer as much constitutional protection have exploited this loophole in the ECPA, making for electronic communications as Title III offers it easier to obtain lawfully intercepted electronic for voice communications. 10 Authorization for communications from suspected criminals.1 19 an application to intercept electronic communica- tions can be made by any government attorney,"' 3. The Pen Register and Trap and Trace Statute whereas authority to apply for a wiretap can only Enacted as Part of the ECPA120 be granted by a high-ranking Justice Department official." a2 Moreover, authorization for inter- The ECPA also amended Title III's provisions cepting electronic communications can be made for issuing a pen register or trap and trace de- in conjunction with any federal felony by merely vice. 121 A pen register surveillance device is capa- showing that the information sought is relevant to ble of capturing in real time the numbers dialed a criminal investigation.' 13 In contrast, telephone on outgoing telephone calls. 122 Trap and trace de- wiretaps may only be used for certain felonies vices capture in real time the numbers of incom- 123 enumerated in Title 111.114 In addition, the ECPA ing telephone calls. Unlike the interception of provides greater protection against real-time in- the content of electronic communications, gov- terception of electronic communications than it ernment agents do not need to show probable does against government access to stored elec- cause in order to obtain court authority for a pen tronic communications.' 15 To make real-time in- register or trap and trace device.' 24 A court will terceptions of electronic communications, gov- grant authorization upon certification "that the

ley, dissident groups and journalists. The Committee con- age for less than 180 days, the only means to obtain its con- cluded in light of technological advancements, government tent is with a warrant. However, the legal standard to justify agents are capable of intercepting and monitoring most pri- issuance of the warrant is whether the communication is rele- vate communications. Corn-Revere, supra note 14. vant to an ongoing investigation rather than the probable 106 See S. REP. No. 99-541, at 2 (1986), reprinted in 1986 cause required for real-time interceptions of electronic com- U.S.C.C.A.N. 3555 (stating that Congress must act to protect munications. Id. at § 2703(d) (1994 & Supp. III 1997). If the the privacy of citizens by updating laws to keep up with ad- electronic communication has been electronically stored for vancements in technology, which would ensure the contin- more than one hundred eighty days, it can be obtained in ued vitality of the Fourth Amendment). more ways. To do so without notifying the affected party, a 107 18 U.S.C. § 2510(12) (defining electronic communi- warrant must be issued. With prior notice, government cation as "any transfer of signs, signals, writing, images, agents may do so with a subpoena or court order. Nojeim, sounds, data, or intelligence of any nature transmitted"). supra note 105. 108 See Nojeim, supra note 105. 118 See Nojeim, supra note 105. 109 See id. 119 See id.; see also Steve Jackson Games, Inc. v. United 110 See id. States Secret Service, 36 F.3d 457, 462-64 (5th Cir. 1994). "1 18 U.S.C. §§ 2510-2522; 18 U.S.C §§ 3121-3127 120 18 U.S.C. §§ 3121-3127. (1994 & Supp. IV 1998). 121 See id. at §§ 3121-3127; see also D. Ian Hopper, An In- 112 See id. at § 2516(1). ternet 'Carnivore, at http://www.abcnews.go.com/sections/ 113 See id. at § 3123(a). tech/dailynews/carnivore000727.html (July 27, 2000) ("In a 114 See id. at § 2516(1) (a). telephone 'trap and trace' or 'pen register' wiretap, authori- 115 See AMENDING THE PEN REGISTER, supra note 103; see ties can get a list of phone calls made to and from a certain also Miller, 425 U.S. at 443 (holding that individuals do not telephone number. The usable information is limited to the have a reasonable expectation of privacy in their financial 10 digit telephone number and the time of the call."); Smith, records stored at their bank). 442 U.S. at 743 (holding that the numbers dialed on a tele- 116 18 U.S.C. § 2518(3) (a); see also Nojeim, supra note phone are not private). 105. 122 See 18 U.S.C. § 3127(3). 117 See Nojeim, supra note 105. Under 18 U.S.C. § 2703 123 See id. at § 3127(4). (1994), when the electronic communication has been in stor- 124 See id. at § 3123 (nothing that neither device should COMMLAW CONSPECTUS [Vol. 9

information likely to be obtained by such installa- CALEA did not totally exempt Internet communi- tion and use is relevant to an ongoing criminal cations from electronic surveillance because the investigation."' 12 5 It is important to note that the government's ability to conduct electronic surveil- pen register and trap and trace statute does not lance under the ECPA was unaffected.13 2 In enact- have any safeguards to prohibit the admission of ing CALEA, Congress' clear intent was to preserve evidence obtained in violation of the Fourth the government's existing surveillance capabili- Amendment. 12 6 ties.'. 33 Specifically, CALEA required that while carry- ing out statutory obligations, such as assisting 4. Communications Assistance for Law Enforcement gov- Act of 1994127 ernment agents with installation of wiretaps, tele- communications carriers must restrict the Congress made another attempt to redefine the government's access to only the information for 1 34 balance between individual Fourth Amendment which courts have authorized interception. privacy rights and the government's need to con- CALEA also reinforces limitations on information duct electronic surveillance of criminal activity that the government can obtain using pen register with the Communications Assistance for Law En- and trap and trace devices. 3 5 In addition, CALEA forcement Act of 1994 ("CALEA"). 128 CALEA re- required that government agents obtain a court quired telecommunications carriers to provide order before obtaining information relating to 6 law enforcement officials with assistance in re- electronic mail or online profiles.13 sponding to criminal use of improving technolo- United States Telecom Ass'n. v. FCC 37 involved a gies. 129 Surveillance techniques did not advance situation in which the Telecommunications In- at the same pace as communications technology, dustry Association ("TIA") developed standards making it more difficult for law enforcement (called 'j-Standards") to fulfill its duties under agents to monitor criminal activity.'3 0 CALEA CALEA.' 38 The Center for Democracy and Tech- clearly did not extend to information services, in- nology ("CDT") argued that the J-Standard vio- cluding online service providers. 13 1 However, lated CALEA and petitioned the Federal Commu-

reveal the content of the intercepted communication, the nications industry led carriers to end their cooperation with parties to the communication or even if the call was com- government in preserving government's wiretapping capabil- pleted); see also AMENDING THE PEN REGISTER, supra note 103 ities because without a uniform law requiring such coopera- (commenting that the standard for issuance is a "rubber tion, those carriers who did cooperate were put at a competi- stamp"). tive disadvantage to those carriers who did not cooperate), 125 18 U.S.C. § 3123(a). A court "shall enter an ex parte available at www.house.gov/judiciary. order authorizing the installation and use of a pen register or 129 See Pub. L. No. 103-414, 108 Stat. 4279 (1994) ("An trap and trace device . . . [if the] information likely to be act to ... make clear a telecommunications carrier's duty to obtained is relevant to an ongoing criminal investigation." Id. cooperate in the interception of communications for law en- The court order granting authority to a government agent to forcement purposes."); see also 18 U.S.C. § 2518(4) (provid- use a pen register or trap and trace device in a particular ing that an order can be issued to enforce the assistance re- investigation must specify the targeted person and the quirements as set out in CALEA); Corn-Revere, supra note 14 targeted telephone number. Id. See also AMENDING THE PEN ("CALEA is the first statute to impose upon telecommunica- REGISTER, supra note 103 (arguing that "the standard of ap- tions carriers an affirmative obligation to modify and design proval is so low as to be nearly worthless" in the protection of their equipment, facilities, and services to 'ensure that new privacy); Corn-Revere, supra note 14 (noting that the govern- technologies and services do not hinder law enforcement's ment does not need to show probable cause because num- access to the communications of a subscriber who is the sub- bers dialed to make a telephone are not private communica- ject of a court order authorizing electronic surveillance.' "). tions). 130 See Corn-Revere, supra note 14. 126 See AMENDING THE PEN REGISTER, supra note 103 (re- 131 See id. (discussing H.R. REP. 103-827(I), at 1 (1994) porting that there is no exclusionary rule tinder this statute, reprinted in 1994 U.S.C.C.A.N. 3489). the Fourth Amendment's exclusionary rule does not apply, 132 See id. and there is no requirement for judicial supervision). 113 See H.R. REP. 103-827(l), at 1 (1994), reprinted in 1994 127 Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified U.S.C.C.A.N. 3489 (setting "both a floor and a ceiling" on in scattered sections of 47 U.S.C. and 18 U.S.C.). government's ability to conduct electronic surveillance); see 128 Electronic Communications Privacy Act of 2000, Digital also Corn-Revere, supra note 14. Privacy Act of 2000, and Notice of Electronic MonitoringAct: Hear- 1'-4 See 47 U.S.C. § 1002(a)(1) (1994). ings on H.R. 5018, H.R. 4987, and H.R 4908 Before the House 135 See id.at § 1002(a) (2). Judiciary Comm. Subcomm. on the Constitution, 106th Cong. 139 136 See id.at § 1002(a)(1). (2000) (testimony of Robert Corn-Revere, Partner, Hogan & 137 227 F.3d 450 (D.C. Cir. 2000). Hartson, LLP) [hereinafter Hearings on Electronic Communica- 138 Id. at 455-56. The TIA isan accredited standard set- tions Privacy Act] (explaining that changes in the telecommu- ting body that works in conjunction with the FBI. Id. 20011 Electronic Surveillance of Internet Communications

nications Commission ("FCC") to remove the III. THE INTERNET TODAY offending provisions. 3 9 The FBI and DOJ also pe- titioned the FCC, but argued that the J-Standard Today, the Internet is quickly becoming the ma- 140 fell below CALEA's requirements. The DOJ jor vehicle for global communications and social provided the FCC a list ("FBI punch list") of sur- activity 418 The Internet is constantly evolving and veillance capabilities that it wanted added to TIA's accessible, drawing more and more people who 14 1 J-Standard. The FCC added four of the FBI desire to make use of its virtually unlimited appli- 49 punch list capabilities to the J-Standard and re- cations. 1 The uses for which people employ the fused to remove from the J-Standard the two pro- Internet are vastly increasing; they include elec- 142 visions to which the CDT objected. The matter tronic mail, shopping and electronic commerce, was appealed to the United States Court of Ap- as well as transferring "financial statements, medi- 43 50 peals for the District of Columbia.' cal records, and information about children."' Once there, the appeals court considered the As uses for the Internet continue to evolve, more validity of the FCC provisions imposing duties on personal data will be transferred online.' 5 1 The 144 telecommunications carriers under CALEA. unintended, and potentially harmful, byproduct The petitioners alleged that the FCC's implemen- of this development is that it makes a massive tation of the punch list items exceeded the scope amount "of sensitive data available to government 52 of CALEA. 145 The appeals court stated that Con- investigators.'1 gress' intent in enacting CALEA was to preserve The interception of Internet communications the government's ability, pursuant to proper au- will likely increase as digital technology improves thority, to intercept communications by requiring and becomes more widely used.153 Digital tech- telecommunications carriers to build surveillance- nology allows government agents to capture and ready networks. 146 The appeals court also noted process more communications than what was pos- that CALEA was intended to maintain the status sible with analog communications. 5 4 With analog quo in electronic surveillance as shown by the stat- communications, "a single circuit is opened be- utory duty of telecommunications carriers to pro- tween caller and recipient and all electronic sig- tect communications that the government does nals that make up the communication travel 47 not have the authority to intercept. along the circuit."1 55 In contrast, digital commu-

139 Id. more than just four years ago-of American adults use the 140 Id. at 456. Internet. This statistic does not include the widespread use of 141 Id. the Internet in schools. See Davidson, supra note 7 149 See Davidson, 142 Id. supra note 7 (commenting that the In- ternet promises to "promote expression, spur economic op- 143 Id. at 456-57. Appeals by the petitioner, Cellular portunity, and reinvigorate civic discourse"). Telecommunications Industry Association, CDT, Electronic 150 Id. Indeed, this explosion of online activity has come Frontier Foundation, Electronic Privacy Information Center to be known as the Internet revolution. and the American Civil Liberties Union were consolidated 151 See id. (noting that electronic communications in- into this case. creasingly contain sensitive content relevant to an individ- 144 See id. at 457 (reviewing the FCC's provisions requir- ual's "actions, relationships, and thoughts"). ing that carriers make available the location of antenna tow- 152 Corn-Revere, supra note 14 (stating that the elec- ers, signaling information from custom calling features, num- tronic wiretap has replaced the telephone wiretap as the bers dialed after calls are connected and packet mode data). most common form of surveillance). 145 See id. 153 See The FourthAmendment and CarnivoreBefore the House 146 See id. at 454-55. Judiciary Comm. Subcomm. on the Constitution, 106th Cong., at 147 See id. ("CALEA permits the telecommunications in- www.house.gov/judiciary (2000) (statement of Barry Stein- dustry, in consultation with law enforcement agencies ... to hardt, Assoc. Dir. Am. Civil Liberties Union) [hereinafter develop its own technical standards for meeting the required Steinhardt]. surveillance capabilities." (citing 47 U.S.C. § 1006)). 154 See id. (contrasting the labor intensive practice of in- 148 See ACLU v. Johnson, 4 F. Supp. 2d 1029, 1031 tercepting analog communications with the use of computers (D.N.M. 1998) (making a finding of fact that the Internet is a that can assist government agents in processing intercepted "global medium of communication that links people, institu- digital communications). tions, corporations and governments around the world"); see 155 United States Telecom Ass'n, 227 F.3d at 450. also Davidson, supra note 7. Davidson referred to a Harris poll from December 1999 revealing that 56%-six times COMMLAW CONSPECTUS [Vol. 9

nications are broken into data packets that travel ing all other communications that the govern- independently across networks and "are then reas- ment has no authority to intercept.1 6 4 The cap- 165 sembled in the proper sequence" at the commu- tured data is then stored on a removable disk. nication's destination. 15 6 Each data packet con- Functioning like a pen register or trap and sists of two components. One component is the trace device, Carnivore can provide the origin and address information, which appears in the destination of all communications traveling across packet's header and, like an envelope address, en- the ISP's network going from and coming to the sures that the communication arrives at the alleged criminal suspect's computer. 16 6 However, proper location and is reassembled in the correct Carnivore also is capable of performing wiretap sequence. The second component is the body, or functions because it can monitor and record the payload of the communication, which contains content of Internet communications, such as e- 1 57 the communication's content. mail messages. 167 Therefore, the government can use Carnivore pursuant to either a wiretap order, A. How Carnivore Works which allows the interception of content, or under a pen register and trap and trace order that Increasingly, criminals are using the Internet to only authorizes interception of numbers related commit crimes. 158 The FBI claims that it has had a to communications from or to specified targets. 68 difficult time pursuing cyber criminals because its The potential that data mining can take place agents lack vital support technology necessary to under pen register- and trap and trace orders catch this new breed of criminal suspects.' 5 '- As a poses an unreasonable threat to Fourth Amend- result, the FBI developed the diagnostic tool Car- ment rights. 169 Questions abound concerning nivore to conduct electronic surveillance of elec- who controls the filter settings on Carnivore and tronic mail messages and other online communi- who oversees the FBI in order to assure that gov- ° cations."' The FBI plugs a personal computer ernment agents only make lawful use of the sys- running the Carnivore software into the surveil- tem.' 70 The threat is made more dangerous when lance target's ISP network.' 6' The system's opera- one considers that the FBI can control Carnivore tor then uses a Graphical User Interface, such as a from a remote location in order to monitor the 7 touch screen, to set the system's filters.' 62 Carni- data collected and to change the filter settings. 1 vore, classified as a "packet filter" or "packet snif- Additionally, not having an opportunity to review fer,"163 searches, intercepts and then collects the Carnivore's program code has created a fear digital data packets identified as the surveillance among ISPs of the possible side affects that Carni- target's electronic communications, while ignor- vore may have on their network operations and

156 Id. 165 See id. 157 See id. 166 See Davidson, supra note 7. 158 See Carnivore and the Fourth Amendment Before the House 167 See id. Judiciay Comm. Subcomm. on the Constitution, 106th Cong., at 168 AMENDING THE PEN REGISTER, supra note 103. E-mail www.lexis-nexis.com/congcom (2000) (statement of Kevin V. Di Gregory, Deputy Assistant Attorney Gen., United States addresses are unique to individual users-unlike telephones Dep't ofJustice) [hereinafter Gregory]. that can be used communally-so it is likely that a pen regis- 159 See Davidson, supra note 7. However, recent advance- ter will reveal the identity of the message's recipient. Addi- ments in technology have greatly improved the government's tionally, if Carnivore can capture URLs, website addresses or ability to conduct electronic surveillance. So much so that in file names, the information the government obtains will the next decade the FBI predicts a 300% increase in the use likely reveal the substance of the communication's contents. of wiretaps. However, the reality is that the Internet benefits Id.; see also Brown, 50 F.3d at 294 (holding that numbers di- both criminals and law enforcement agents. Id. aled into digital pagers are considered to be content and 160 See Kerr, supra note 8. therefore subject to government interception only through 161 See Carnivore and The Fourth Amendment: Hearing Before properly authorized wiretaps). the Subcomm. on the Constitution of the House Comm. on thejudici- 169 See Corn-Revere, supra note 14 (arguing that using ary, 106th Cong., at http://www.house.gov/judiciary/ pen register and trap and trace capabilities in this instance perr0724.htm (2000) (statement of Tom Perrine, Computer violates congressional intent to protect Fourth Amendment Security Office, San Diego Supercomputer Ctr.). rights through the ECPA). 162 See id. 170 See Davidson, supra note 7. 163 Id. 171 See Ted Bridis and Neil King Jr., Politics and Technol- 164 See id. (operating as a packet sniffer, Carnivore can ogy: The FBI Lobbies to Show Carnivore Doesn't Eat Privacy, TIE capture downloaded files, online conversations and e-mail WALL S'r. J. EUROPE, July 21, 2000, available at 2000 WL-WSJE messages). 21066796 [hereinafter Bridis & King]. 2001] Electronic Surveillance of Internet Communications

72 security systems. 1 under the Fourth Amendment. 80 Pen register devices and trap and trace orders Moreover, unlike wiretap orders, pen register are obtained under a "standard of approval so low and trap and trace devices do not have a minimi- as to be nearly worthless,"'173 and there are no zation rule. This rule requires that, in executing a provisions for judicial or ISP oversight of Carni- wiretap order, law enforcement agents must mini- 1 74 vore when used under this kind of authority. mize the interception of nonincriminating com- For example, when the government employs Car- munications.' 8' The lack of a minimization rule nivore under a pen register or trap and trace or- for pen register and trap and trace devices be- der, the system maintains its potential to conduct comes more notable when one considers that, re- wiretapping functions. 1 75 Moreover, pen register gardless of whether it is authorized by a wiretap, and trap and trace devices were designed to inter- pen register or trap and trace device, Carnivore cept telephone dialing information, and it is not scans the contents of every single communication clear what the Internet equivalent is to numbers traveling on the ISP's network.'8 2 This gives the dialed on a telephone. 176 Those concerned with government access to the communications of the preserving Fourth Amendment rights question targeted suspect, nontargeted subscribers and whether packet headers (the addressing informa- every person who communicates with that ISP's tion) can be separated from packet bodies or pay- customers.'8 3 In effect, this capability makes Car- loads (the contents of Internet communica- nivore a maximization tool rather than the mini- tions). 1 7 7 The letters in an e-mail address are not mization tool required by the Fourth Amendment analogous to the numbers used for making tele- because "Carnivore is roughly equivalent to a phone calls because e-mail addresses, Internet wiretap capable of accessing the contents of the protocol addresses, header information and URLs conversations of all of the phone company's cus- 8 4 can reveal more information (such as the identi- tomers." ties of the parties and the contents of the commu- Questions also remain unanswered about the nication) than incoming or outgoing telephone system's technical capabilities because the FBI has numbers reveal under a "normal" pen register or refused to reveal Carnivore's source code.8 5 In trap and trace device. 178 There is a very real threat fact, there was no public oversight in developing that, when applied to Internet communications, Carnivore. 18 6 Constitutional scholars and industry pen register and trap and trace devices will inter- experts are among the many who argue that 17 cept the communication's content unlawfully. granting the public access to its source code (the Carnivore's ability to capture vast amounts of data technical blueprint behind a software program has the potential to provide a detailed picture or like Carnivore) would end the controversy sur- profile of a person's associations, habits, contacts, rounding Carnivore by increasing public under- interests and activities, which are all outside the standing and allowing for review by independent permissible scope of government surveillance experts.'i 7 "[I]solating network traffic can be

172 See Davidson, supra note 7 (arguing that without a re- 182 See Steinhardt, supra note 153. view of Carnivore's source code, questions remain unan- 183 See High Tech Investigations, Hearing Before the House Ju- swered about the accuracy of the audit trails and system's diciary Comm. Subcomm. on the Constitution, 106th Cong., at safeguards against tampering). http://www.house.gov/judiciary/stei0724.htm (2000) (state- "3 Id. ment of Barry Steinhardt, Assoc. Dir., Am. Civil Liberties 174 See id. (finding that the lack ofjudicial oversight cre- Union) [hereinafter ACLU); see also Nojeim, supra note 105. ates a potential for misuse). This is the type of search and seizure the Fourth Amendment 175 See id. (noting that this additional capacity is what protects against. Statistics for 1969-1973 detail that over 50% makes Carnivore different from the trap and trace and pen of intercepted electronic communications were incriminat- register devices used in connection with telephone surveil- ing. In contrast, from 1994-1998, statistics reveal that only lance because Carnivore has the capability to scan headers, 20% of intercepted electronic communications were incrimi- subject lines and content information). nating. For each electronic surveillance interception, 1,608 176 See Steinhardt, supra note 153 ("On the Internet, the innocent conversations are intercepted. The data for 1998 only time numbers are literally 'dialed' by a telephone is shows that as the use of electronic surveillance has risen to an when a user connects to an ISP using a dial up modem."). all-time high, the percent of innocent communications inter- 177 See AMENDING THE PEN REGISTER, supra note 103. cepted has risen as well. Id. 178 See Steinhardt, supra note 153. 184 ACLU, supra note 183. 179 See AMENDING THE PEN REGISTER, supra note 103. 185 See Davidson, supra note 7. 180 See id. 186 See id. 181 See id. 187 See id. COMMLAW CONSPECTUS [Vol. 9

technically difficult," and it may not be possible to discourage and punish unlawful uses of Carni- for the government to obtain the e-mail addresses vore. '94 In addition to judicial oversight and court of incoming and outgoing messages for a particu- authorization, the DOJ, which includes the FBI, lar subscriber.188 Additionally, it may not be possi- has installed what it argues are sufficient internal ble to separate the source or destination informa- oversight mechanisms for Carnivore's use.1 9 5 For tion of a communication from the example, although Carnivore scans every commu- communication's content. 89 nication on the ISPs network, the system's filters are configured to record only the communica- tions of the surveillance 196 B. The Government's Position on Carnivore target. Moreover, Car- nivore logs the filter settings and reports its activ- The government counters Carnivore's critics by ity in audit trails,"9 7 and agents who misuse arguing that the potential capabilities of Carni- Carnivore are subject to both civil and criminal vore are irrelevant because court orders specify penalties.'9-8 The government also claims that an the extent to which the wiretap device can inter- individual agent acting alone is unlikely to abuse cept data from electronic communications.190 Carnivore because the system's installation and Moreover, the government claims that it will only operation require support from both technical ex- use Carnivore for cases in which the ISP is unable perts and the ISP.'' to obtain the information or when the ISP re- Accepting the government's word is an implicit quests that the government use its own equip- rejection of the Fourth Amendment and the prin- ment to obtain the information.' 9' The FBI justi- ciples on which it stands.2111' Historically, the FBI fies its refusal to reveal Carnivore's source code by has failed to uphold the promises it has made re- arguing that doing so would allow criminals to de- garding self-imposed limitations on law enforce- velop methods to defeat the system.' 92 However, ment capabilities. 20 1 Therefore, the reality is that this argument is strained because the government Congress should take action to update the statu- is asking the public to accept its word that govern- tory scheme governing electronic surveillance and ment agents will not exceed the scope of a court enact further protections for individual privacy on order authorizing the interception of electronic the Internet.21 12 The consequences of congres- communications. "3 Nevertheless, the govern- sional inaction concerning the scope of electronic ment asserts that there are substantial safeguards surveillance and Carnivore could very well create

188 1I.(commenting that Internet protocol addresses, an individual's right to speak anonymously). the numbers making up an e-mail address, may be changed 194 See Kerr, supra note 8. But see ACLU, supra note 183 overtime and result in a failure to intercept the targeted com- (noting that the government's "trust us" approach is inade- munications or the interception of communications from the quate to preserve the principles underlying the Fourth wrong user). Amendment). 189 See id. Source or destination information varies de- 195 See Kerr, supra note 8. pending "on what layer of the Internet protocol stack one 196 See Davidson, supra note 7 (stating that in theory, Car- looks at [sic]." Id. Source and destination information can be nivore is a minimization tool that is programmed to store found in the header Ethernet address of the local network; only specific communications). But see Steinhardt, supra note the "IP address of an ISP's mail server; [and] the To: line of 153 (stating that in effect, the government "asks you to trust an e-mail message." Id. For example, a URL not only provides it with unsupervised access to the entire stream of communi- the location of the data's source, but having obtained that cations over an ISP's network"). URL, a government agent can visit the same site and view the 197 See Gregory, supra note 158. contents of the communication. Id. 1908 See Kerr, supra note 8. 190 See Gregory, supra note 158. 199 See Bridis & King, supra note 171; see also Kerr, supra 191 Id. note 8. 192 See Michael J. Sniffen, Chewing Out 'Carnivore,' 200 See Steinhardt, supra note 153 (arguing that the ABcNEWS.coM, Aug. 25, 2000, available at http:// Fourth Amendment is built on the premise "that the Execu- more.abcnews.go.com/sections/tech/dailynews/carni- tive cannot be trusted with carte blanche authority when it vore000825.html. The Justice Department selected a private conducts a search"). organization to review Carnivore. The review will consider 211 See id. (detailing the FBI's attempts to circumvent the whether Carnivore provides all the information the govern- bargain struck by CALEA in preserving the status quo of gov- ment should see but none of the information the govern- ernment surveillance capabilities). ment should not see; or if it poses risks to the ISP's network 202 See Corn-Revere, supra note 14. The Omnibus Crime or contains effective safeguards against unauthorized use. Id. Control and Safe Streets Act dates from 1968, and the most 193 See generally McIntyre v. Ohio Elections Comm'n, 514 recent update to surveillance laws, the ECPA, dates from U.S. 334 (1995) (holding that the First Amendment protects 1986. 20011 Electronic Surveillance of Internet Communications a chilling effect on communications. 203 Moreover, digit extraction to the J-Standard.2 1 0 Despite the the American public's fear of electronic surveil- court's reluctance to find information gathered lance fosters distrust of the government. 204 This by pen register and trap and trace devices analo- combination could undermine the Internet's ex- gous to call-identifying information, 21 i the deci- pansion. 20 5 Therefore, today's climate of advanc- sion does just that very thing. ing technology once again requires redefining the Applying the court's analysis to a potential legal balance between personal liberties and the need challenge to Carnivore will lead to a similar result. of law enforcement to monitor criminal activ- 206 Like dialed digit extraction, the information that ity. Carnivore reveals under a pen register or trap and trace device court order may reveal the contents IV. PROPOSED SOLUTIONS TO ENSURE of Internet communications in violation of the 2 12 THAT CONSTITUTIONAL Fourth Amendment. Unfortunately, current PROTECTIONS EXTEND TO INTERNET law "is far from clear on the use of pen register or 2 3 COMMUNICATIONS trap and trace devices in the Internet context." I Therefore, United States Telecom Ass'n is useful in illustrating how a CALEA-like framework-where A. The Feasibility of a CALEA Framework standards developed by the telecommunications In considering the scope of CALEA's definition industry outline what telecommunications carri- of call-identifying information in United States ers must provide government agents employing Telecom Ass'n, the court noted that CALEA does electronic surveillance-may prevent Carnivore not cross-reference or incorporate the ECPA defi- from invading Fourth Amendment privacy rights. nitions or statutory provisions regarding pen reg- This case demonstrates that even dialed digits can ister or trap and trace devices. 20 7 However, the contain content deserving Fourth Amendment court still questioned whether the requirement protection.2 14 Applied to electronic mail and under CALEA to provide call-identifying informa- other Internet communications, this proposition tion can be used lawfully to obtain all digits dialed should raise concerns that even if Carnivore's fil- after a call connection has been established.20o ters are set to capture only header information, 2 5 The court stated that so called "dialed digit ex- the data intercepted will likely contain content. 1 traction" may violate Fourth Amendment privacy As the congressional intent behind CALEA was rights because it is just as likely that the digits to maintain the status quo in electronic surveil- comprise call content as call-identifying informa- lance, any change to the ECPA concerning Carni- 2 09 tion. As a result, the court refused to add dialed vore should reflect this intent.2 16 ISPs should re-

203 See generally Davidson, supra note 7 (stating that Amer- 211 See id. at 462. ican citizens should not have to choose between keeping 212 See generally Davidson, supra note 7. More information their communications private and participating in the In- is transported across the Internet than is transported using ternet revolution). telephones, so the same surveillance devices net different re- 204 See Nojeim, supra note 105. sults with the two media. Electronic surveillance of Internet 205 See id. communications reveals more information than phone taps, 206 See Corn-Revere, supra note 14 (noting that "the law and therefore should have to satisfy a higher legal standard must be updated to keep up with changes in technology"). before a court authorizes their use. The most recent action 207 See United States Telecom Ass'n, 227 F.3d at 450 (consid- involving electronic surveillance laws dates back to 1986, and ering the validity of the FBI punch list provision requiring these laws need revision to ensure that constitutional protec- telecommunications carriers to monitor call content to cap- tions extend to the Internet as it stands today. Id. ture all digits dialed after calls have been connected in light 213 Corn-Revere, supra note 14 (stating that when used of CALEA's ambiguous definition of call-identifying informa- on the Internet, these devices have the potential to be much tion). more intrusive, raising new Fourth Amendment issues that 208 See id. Digits dialed after a call has been established need resolution). may include telephone numbers, but might include content 214 See generally United States Telecom Ass'n, 227 F.3d at 450. such as bank account numbers or passwords. 215 See, e.g., People v. Bialostok, 610 N.E.2d 374 (N.Y. 209 Id.; see, e.g., Brown, 50 F.3d at 294 (holding that num- 1993) (holding that a pen register device, capable of inter- bers sent to pagers are content receiving Fourth Amendment cepting content information, can only be used with a valid protection). wiretap order); People v. Kramer, 701 N.Y.S.2d 78 (N.Y. App. 210 See United States Telecom Ass'n, 227 F.3d at 466 (vacat- Div. 1999). ing and remanding to allow for further consideration of 2116 See Corn-Revere, supra note 14. Following the con- whether dialed digit extraction is legally permissible when gressional intent underlying CALEA when changing the performed under a pen register or trap and trace order). ECPA will require restricting Carnivore's capabilities and lim- COMMLAW CONSPECTUS [Vol. 9 tain control over their networks. Under the to say otherwise "is to ignore the vital role that the equivalent of industry standards, ISPs should face public telephone has come to play in private com- the statutory duty to provide law enforcement offi- munications."' 224 Today, this statement applies to cials, with proper court authority, access only to the Internet, making the presence or absence of a 2 17 information to which they are legally entitled. physical intrusion irrelevant to whether a search Because the J-Standards in CALEA have built-in or seizure violates the Fourth Amendment.225 In- provisions for agency and judicial review, these dividuals using the Internet as a mode of commu- standards should serve as the model for future nication have reasonable expectations of privacy statutory control of Carnivore. Not only are ISPs that require greater legal protections than cur- the most technically qualified to install and oper- rent laws provide. 22"6 Therefore, Congress should ate systems such as Carnivore on their networks amend the ECPA to require that any information but also their involvement will serve as an added other than the equivalent of dialed numbers is check against a government agent's unauthorized only accessible with a valid wiretap order.2 27 This use.218 In other words, ISP's should be responsi- would exclude "search terms, URLs identifying ble for protecting privacy rights against unautho- certain documents, files, web pages, or other rized government interception. 2 19 Congress transactional information" from the definition of should require the ISP to directly oversee the sep- dialed numbers.22' Moreover, because Carnivore aration of the surveillance target's communica- performs wiretapping functions, the legal stan- tions from other communications traveling across dard supporting pen register orders should be ISP networks. 220 Furthermore, if ISPs are capable raised to a probable cause standard. 229 This would and willing to furnish the information that the close the loophole through which government government has authority to intercept, the gov- agents have previously been able to capture con- ernment should not be permitted to reject this of- tent information without a wiretap order and re- 23 fer and instead use Carnivore to obtain the infor- lated judicial oversight. 0 mation. 22' If an ISP refuses to assist the The ECPA also should be amended to contain government, the government should still be re- an exclusionary rule similar to the one in Title III quired to satisfy Title III before conducting elec- that prohibits the use of improperly obtained in- tronic surveillance.2 22 Additionally, if ISPs are formation. 23' Likewise, Congress should impose compelled to assist law enforcement officials us- requirements for reporting statistics and record ing Carnivore, the government should be re- keeping modeled after those in Title 111.232 Cur- quired to reveal information about Carnivore's rently, the ECPA only requires reporting of pen operations and source code to the ISP.223 register and trap and trace orders for which the DOJ applies, not those "by other Federal law en- B. Limiting Electronic Surveillance by forcement agencies or state and local authori- ' 2 33 Strengthening Current Laws ties. Requiring government agents to report use of electronic surveillance will ensure a degree The Katz Court declared that the Fourth of accountability currently absent in electronic Amendment's protection against unreasonable surveillance. 234 Finally, the ECPA should be searches and seizures applies to people wherever amended to include civil and criminal sanc- they may be because interpreting the Constitution tions-similar to those found in Title III for abus- iting the burdens it places on ISPs. 224 Katz, 389 U.S. at 352. 217 See Davidson, supra note 7. Rather than having Carni- 225 See id. vore sit entirely outside the ISP's network and control, the 226 See Hearings on Electronic Communications Privacy Act, device should be installed similarly to a pen register or trap supra note 128. and trace device, both of which require phone company as- 227 See AMENDING T-HE PEN REGISTER, supra note 103. sistance. 228 !d. 218 See id. (detailing the role of ISP's in limiting govern- 229 See Davidson, supra note 7. ment access to only that which has been properly author- 2301 See id. ized). 23 1 See id. 219 See Steinhardt, supra note 153. 232 See AMENDING THE PEN REGISTER, supra note 103; see, 220 See id. e.g., 18 U.S.C. § 2518(9) (1994). 221 See id. 233 AMENDING THE PEN REGISTER, supra note 103. 222 See id. 234 See Hearings on Electronic Communications Privacy Act, 223 See id. supra note 128. 20011 Electronic Surveillance of Internet Communications ing pen register and trap and trace devices-for If Congress elects to remedy the situation by rais- 235 abusing Carnivore. ing the legal standard for pen register and trap Updating surveillance laws strengthens privacy and trace devices, the wiretap minimization rule protections that have been eroded under current needs to be strengthened, and a minimization 236 laws that do not apply easily to the Internet. rule must be adopted that applies to pen register 242 The Constitution should not be literally con- and trap and trace devices. strued because the Founders intended a flexible Requiring the FBI to submit Carnivore's source approach that would allow the Constitution to re- code for public review will let the public know main effective in the face of changing circum- that the government is capable of monitoring the stances. 237 Therefore, Congress should consider electronic communications scanned by FBI taking a stronger position on electronic surveil- agents. 2 43 Public review of Carnivore's source lance by amending the ECPA to require that pen code can be useful in identifying "mistakes, bugs, register and trap and trace orders cannot be used or security holes unknown to the FBI. ' 244 This for intercepting Internet communications. In knowledge will enable the public and ISPs to serve other words, Congress should make a properly is- as checks on government surveillance activities as sued Title III wiretap order the only method by well as alleviate the chilling effect produced by which government agents receive authorization to the mystery surrounding Carnivore's capabili- conduct electronic surveillance of Internet com- ties. 245 In addition, Congress should enact laws to munications. In effect, all Internet communica- require greater oversight by both the court issuing tions should be classified as content and therefore the order authorizing the interception of elec- not lawfully accessible with pen register or trap tronic communications and by the ISP whose net- 2 46 and trace orders.238 The risk that pen register and work is involved in the electronic surveillance. trap and trace devices will capture content is sim- ISPs rightfully claim that they should have ulti- ply too great to believe that the application of mate control over their networks, including the these devices to the Internet can be satisfactorily installation and use of Carnivore by government resolved in a manner that comports with the agents.247 The protection of stored electronic Fourth Amendment. communications should be equivalent to the pro- Congress also must boost the applicability of tection currently afforded to communications in- the Fourth Amendment's minimization rule in or- tercepted in real time.248 Title III wiretap stan- der to protect the Internet communications of dards should apply to capturing stored electronic both surveillance targets and nontargeted private data because content does not change when a citizens communicating over the Internet.23 9 Car- communication becomes stored. 249 Currently, nivore functions by scanning every communication government agents can obtain the same informa- that travels over the ISP's network.2 40 Therefore, tion but under a much less stringent legal stan- the minimization rule should declare expressly dard by making the interception a second after that under no circumstances does the govern- the communication is received and stored on the 250 ment have the authority to intercept communica- user's system. tions that are not the subject of a proper Title III In considering revisions to current electronic 24 court order authorizing electronic surveillance. 1 surveillance laws, Congress will confront the fact

235 See Davidson, supra note 7. 243 See Steinhardt, supra note 153 (discussing the ACLU's 236 See id. filing of a Freedom of Information Act request with the FBI 237 See Olmstead, 277 U.S. at 484 (Brandeis, J., dissent- for documents concerning Carnivore's system operations); ing). see also Davidson, supra note 7. 238 See Davidson, supra note 7. In other words, do not ap- 244 Davidson, supra note 7. ply the rule set out in Smith, 442 U.S. at 745-46. See also 245 See id. Brown, 50 F.3d at 294 (holding that numbers dialed into 246 See Steinhardt, supra note 153. pagers are content and receive Fourth Amendment protec- 247 See Davidson, supra note 7; see also Kerr, supra note 8. tion). The FBI can operate Carnivore independently of any ISP in- 239 See ACLU, supra note 183. volvement, but court orders require that ISP's be notified 240 See Steinhardt, supra note 153. and able to assist in the installation of the device. 241 See id. (acknowledging that this would require limit- 248 See Hearings on Electronic Communications Privacy Act, ing Carnivore's ability to access nontargeted communica- supra note 128. tions). 249 See id. 242 SeeACLU, supra note 183. 250 See id. COMMLAW CONSPECTUS [Vol. 9 that the Cable Communications Privacy Act of lead to a further erosion of Fourth Amendment 26 1 1984251 ("Cable Act") currently provides greater and privacy rights. protections for electronic communications made The Justice Department also proposes increas- using a cable modem than that provided by Title ing the legal standard governing the issuance of 252 III or the ECPA. As a result, Congress should pen register or trap and trace devices under resolve the differences between the three differ- ECPA.262 The proposal applies Tide III standards ent levels of protection in order to protect Fourth for intercepting the content of telephone calls to Amendment rights on a uniform basis for all the interception of the content of electronic com- forms of communication. 253 To adopt any stan- munications. 2 63 This change would increase dard of protection for Fourth Amendment rights ECPA protections of electronic communications less than what the Cable Act provides will seriously 254 to a level comparable with Title III's protections harm the Fourth Amendment. of voice communications.2 64 Changes would in- clude requiring: a high ranking DOJ official, C. Justice Department Proposals rather than any government attorney, to approve applications for intercepting electronic communi- The Justice Department has proposed legisla- cations; probable cause that an enumerated fel- tion that would allow judges to issue countrywide ony, not any felony, has been committed; and pen register and trap and trace orders.255 The jus- courts to apply the exclusionary rule to evidence 265 tification offered for this proposal is that the gov- obtained in violation of proper procedures. ernment's ability to track Internet communica- These changes are justifiable on the grounds that tions is hampered by the need to obtain an order e-mail, like voice communication, is a spontane- in each physical jurisdiction through which the ous form of communication. 266 Although this will communication passes in cyberspace. 2 56 Notably, make it more difficult for government agents to the government's proposal also includes orders obtain court authority to conduct electronic sur- authorizingthe interception of telephone call in- veillance, this provision does not address Carni- 257 formation that do not face a similar burden. vore's ability to scan every communication of Moreover, the proposal does not require the gov- every user on the ISP's network because requiring ernment to make a showing as to why the order a higher legal standard does not address the should be effective nationwide. 258 Eliminating ju- Fourth Amendment's requirement for minimiza- risdictional limits on the use of these surveillance tion.267 Nor does it address the discrepancy in devices has the effect of encouraging their ex- protection of electronic communications stored panded use.25 1 However, before encouraging by third parties. 268 Until stored electronic com- more widespread use of pen register and trap and munications are afforded the same protections as trace devices, Congress should address the ques- real-time communications, government agents tions raised about how these devices apply to In- will be able to circumvent the law by intercepting 269 ternet communications. 26 Failing to do so may the communication after it has become stored.

251 Pub. L. No. 98-549, 98 Stat. 2779 (1984) (codified as 2610 See AMENDING THE PEN REGISTER, supra note 103 (ar- amended in scattered sections of 47 U.S.C.). guing that current laws covering the issuance and scope of 252 See Steinhardt, supra note 153 (noting that unlike Ti- surveillance devices should be amended to strengthen pri- tle III and the ECPA, the Cable Act requires the government vacy protections). to give prior notice to the subject of the surveillance). 261 See Corn-Revere, supra note 14. 253 See id. 262 See Steinhardt, supra note 153 (noting that this pro- 254 See id. posal will only be effective if the new standard is significant). 255 See AMENDING THlE PEN REGISTER, supra note 103. 263 See id. 256 See Steinhardt, supra note 153. 264 See id. 257 See id. 265 See id. 258 See AMENDING THE PEN REGISTER, supra note 103. 266 See id. 259 See id. (arguing that the bill's other provisions in com- 267 See id. bination with the reduction of local judicial oversight threat- 268 See id. ens privacy rights because more personal information will be 269 See id. (explaining that it is highly probable that the collected); Steinhardt, supra note 153 (noting that the legisla- reason a person stores an e-mail message is because it is im- tion also may encourage forum shopping because one order portant; therefore, it is the one most needing privacy protec- will be effective in every jurisdiction). tions). 20011 Electronic Surveillance of Internet Communications

D. Electronic Communications Privacy Act of amendments the Title III provision that requires 2000270 notice to the suspect before the intercepted In- ternet communications can be used in a criminal Legislation currently before Congress would es- proceeding.2 75 The bill, however, does include an tablish greater protections against both the inter- important provision to raise the legal standard for ception of real-time electronic communications obtaining proper authorization for a pen register 276 and the disclosure of stored electronic communi- or trap and trace order. cations.271 H.R. 5018, or the Electronic Communi- cations Privacy Act of 2000, increases the report- ing requirements for government agents V. CONCLUSION conducting electronic surveillance using wire- 2 72 The Fourth Amendment's protection against taps. Obtaining this information is a major step unreasonable searches and seizures applies to pri- in beginning to understand the extent and depth vate Internet communications. Carnivore, the of the government's use of electronic surveil- 273 government's new electronic surveillance device, lance. However, the bill will not have a signifi- demonstrates that current surveillance laws are cant impact on Fourth Amendment rights unless outdated in today's wired world. Neither Congress it also applies to electronic surveillance using pen nor the Justice Department advocates solutions register and trap and trace orders. As with wiretap that will resolve the issues surrounding the chang- orders, reporting information for pen register ing technology in electronic surveillance used by and trap and trace devices will serve to make the government agents. government accountable for its actions.274 Con- gress also should consider including in the

270 See H.R. 5018, 106th Cong. (2000), available at http: supra note 128. It is logical that as the government expands //thomas.loc.gov [hereinafter ECPA 2000]. its use of electronic surveillance, a similar expansion of re- 271 See id. (proposing to amend 18 U.S.C. § 2515 to read porting should take place. "whenever any wire, oral, or electronic communication has 274 See id. been intercepted, or any electronic communication in elec- 275 See id. tronic storage has been disclosed"). 276 See ECPA 2000, supra note 270. ECPA proposes to 2 7 3 272 See id. (proposing to amend 18 U.S.C. § 0 (g) to amend 18 U.S.C. § 3122(b)(2) (1994) to require a showing require reporting the fact the an order was applied for and of factual evidence rather than mere relevance to an ongoing granted, and the information obtained, including the num- criminal investigation. This is the same standard the govern- ber of incriminating communications disclosed). ment must meet to obtain stored electronic communications 273 See Hearings on Electronic Communications Privacy Act, under 18 U.S.C. § 2703(d). Id.