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Carnivore: the Uneasy Relationship Between the Fourth Amendment and Electronic Surveillance of Internet Communications

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Carnivore: the Uneasy Relationship Between the Fourth Amendment and Electronic Surveillance of Internet Communications 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.
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