ASSESSING THE ANTI-TERRORISM ACT, AND DEFENDING CARNIVORE:
How The Internet Can Become A Tool To Fight Terrorism

By LAURA HODES

Monday, Oct. 01, 2001

The degree to which terrorists used the Internet to plan and execute the Sept. 11th attacks is nothing short of disturbing. One of the greatest innovations of the past ten years seems unfortunately to be far better suited to organizing communication among decentralized terrorist cells than to generating advertising revenue.

The Internet age promised to be an age of information and of globalization. Once we saw this expansion of information and the breaking down of borders as empowering and exciting. But over the last two weeks, as our worst fears have been realized, we have come to see the Internet, instead, as fostering a global network of terrorists who could live among us, book their flight tickets electronically — and even educate themselves online about the volume and yield of crop dusting planes.

Our change in perspective is an understandable one, but it should not be allowed to obscure the positive aspects of the Internet. The Internet is a threat, but it can also be a tool to track down the terrorists.

The Anti-Terrorism Bill

Attorney General Ashcroft's antiterrorism bill, the Anti-Terrorism Act ("ATA"), is now before Congress. It is reassuring that even in the wake of the terrorist acts of September 11th, bipartisan efforts in Congress are examining the proposal before passing it, in order to ensure that the right balance is struck between national security and civil liberties.

In striking that balance, lawmakers and the media should be careful to avoid knee-jerk reactions — such as inordinate fear of the government's wielding of technology to aid in its surveillance and search of suspected terrorists. The use of technology by the government seems to immediately conjure up images of Big Brother, but it doesn't have to be that way.

Translating Well-Established Investigatory Powers to the Net

One writer for a newswire writes that Ashcroft is seeking to enact "extraordinary new powers that would also give investigators an unparalleled look into the private correspondence and Web-surfing habits of law-abiding citizens." This writer, like many others, has gotten it wrong.

As the law makes the transition to the Internet, constitutional standards should be kept the same, and abuses of the system should be penalized. But the fact that a search may seem futuristic does not mean that it is inherently unconstitutional — nor does the possibility of abuse mean the system should be junked.

Focusing Searching on Criminal Speech Alone

It is important to realize, too, that the use of technology in surveillance can actually help ensure that the search is focused on the speech of criminals alone — and not the correspondence of innocent citizens.

We should not be fearful of technology. Instead, we should recognize that changing the law to make it consistent with new technologies could actually help protect the civil liberties of the innocent.

While seeking a general balance between national security and civil liberties, we should seek to make the Internet, too, a balanced medium. As French President Jacques Chirac said to the delegates at the 23rd International Conference of Data Protection Commissioners on Thursday, "[R]espect freedom of thought, but don't let the Internet become the tool of the enemies of liberty and human dignity."

"Carnivore": Like A Pen Register on the Net

One section of the ATA would expand wiretapping laws to allow investigators to track e-mail as well as telephone communications in emergency situations, without having to prove "probable cause" — reasonable belief of the likelihood a crime has been or is being committed — before a judge.

The section simply aims to ensure that Internet communications are subject to the same rules as telephone communications. Currently, investigators use phone-tapping tools such as "pen registers" and "trap and trace" devices to monitor what numbers a suspect dials and the numbers of those calling in to a suspect's phone.

Expanding this investigatory power to e-mail would allow investigators to see e-mail headers: the recipient and subject line. The FBI can gather this information using Carnivore — a computer that can be plugged into an Internet service provider's network to search the communications of FBI suspects. (Carnivore has been officially renamed DCS-1000, but media and politicians have stuck with the original name — an unfortunate label that surely damages public relations and helps fan criticism of the system).

The Current Law on Emergency Wiretaps

Consider the current wiretapping law, Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III already permits interception without prior judicial approval in an emergency. More specifically, under the statute, communications can be intercepted without a court order when there are grounds for such an order. Those circumstances in which a court order is not needed are "immediate danger of death or serious physical injury to any person" or "conspiratorial activities threatening the national security interest."

These descriptions surely apply to acts of terrorism, and conspiracies to commit such acts. Accordingly, by allowing emergency searches of e-mails in cases involving domestic or international terrorism, the ATA would merely extend Title III to the Internet.

This change that the ATA would effect, then, is not really in the law governing legal searches, but rather in the search technology (Carnivore) and the area searched (Internet e-mail). And the change in the search technology makes sense as we move from the nonvirtual to the virtual world.

Hysteria About Carnivore

Nevertheless, there seems to be a basic misunderstanding and mistrust of Carnivore — perhaps driven by the fear or distrust that government use of technology stirs in us.

Some criticisms of Carnivore fault it for its very strength–its ability to pinpoint on certain speech actually allows investigators to filter out what they are not entitled to see, thereby protecting privacy. One commentator has written in the Village Voice, for example, that Carnivore "is a computer that the Feds attach to an Internet service provider; once in place, it scans e-mail traffic for 'suspicious' subjects–which, in the current climate, could be something as innocent as a message with the word 'Allah' in the header."

The Voice commentator forgets that although Carnivore could unwittingly target innocuous messages, at least it is designed not to. The alternatives — a broad search of all messages, both innocent and suspicious, or no search at all, even when terrorists are employing e-mail — seem far less palatable.

Technology like Carnivore can actually help focus an investigation, pinpointing the speech that the police are targeting, so that less innocent speech is swept up into the search. Carnivore, programmed to focus on certain information, is actually geared towards being consistent with the Fourth Amendment by not drawing in innocent speech any more than is absolutely necessary.

Innocents Will Inevitably Sometimes Be Affected

Indeed, sometimes innocent persons may unwittingly come into possession of evidence that relates to a criminal investigation, and thus undergo a search despite the fact that they have done nothing wrong — a consequence the Supreme Court has considered, and found constitutionally acceptable. .

The issue arose in 1967in Warden v. Hayden, when the Supreme Court abolished the "mere evidence" rule. That is, it held that police officers could seize not only fruits of crime, instrumentalities of crime, and contraband (such as drugs or illegal guns), but also "mere evidence" — articles with a nexus to criminal activity.

The Court held that this nexus exists if there is probable cause "to believe that the evidence sought will aid in a particular apprehension or conviction" — not necessarily, however, the apprehension or conviction of the person who undergoes the search. Warden thus enlarged the class of persons who may be subject to searches. Based on the decision, sometimes the communications of innocent persons, whether they are evidentiary papers or e-mails, may be examined as the police search for incriminating evidence.

During the week the Warden ruling was issued, the Supreme Court also issued Berger v. New York, a 5-4 decision invalidating a New York State wiretapping statute. The Court held that the statute seemed to authorize eavesdropping without requiring the belief that any particular offense has been or is being committed, or that the "property" sought, the conversations, be particularly described, as required by the Fourth Amendment.

As Justice White argued in his strong dissent , "Petitioner suggests that the search is inherently overbroad because the eavesdropper will overhear conversations which do not relate to criminal activity. But the same is true of almost all searches of private property that the Fourth Amendment permits. In searching for seizable matters, the police must necessarily see or hear and comprehend items which do not relate to the purpose of the search. That this occurs, however, does not render the search invalid, so long as it is authorized by a suitable search warrant and so long as the police, in executing that warrant, limit themselves to searching for items which may constitutionally be seized."

The majority seems to have been motivated by fear of the capabilities of new technology. As Justice Black said in his dissent, "All of this is done, it seems to me, in part because of the Court's hostility to eavesdropping as 'ignoble' and 'dirty business' and in part because of fear that rapidly advancing science and technology is making eavesdropping more and more effective."

Defending Carnivore Under Prior Law

As Justice White's analysis suggests, the use of Carnivore to search for targeted information in e-mails (where the state has reason to believe a crime has been or is being committed) is consistent with Fourth Amendment case law. Central to Fourth Amendment law, for example, is that one has no reasonable expectation of privacy in what one willingly exposes in a public place or to a third party.

Similarly, senders of e-mail do not have a legitimate expectation of privacy regarding the identity of their recipients because third parties–the ISP or e-mail provider–learn that information, as most users well know.

One who accesses the Internet in a public place–the public libraries or Kinko's that the suspected hijackers used–has even less claim to privacy in the numbers he dials, or the sites he visits. Anyone can look over his shoulder as he works, as he well knows, and even the device he uses is owned by a third party, the government, or a private company entitled to impose rules on its use.

The conclusion that monitoring public computer use poses few Fourth Amendment problems is confirmed by the Court's 1983decision in United States v. Knotts. In Knotts, the Court held that federal officers' installation of a beeper in a person's automobile to track his movements did not constitute a search because police could have secured the same information through visual surveillance that did not require trespassing.

Similarly, information about e-mail sent from a public computer hypothetically could have been secured through visual surveillance, too — the policeman simply glancing over the terrorist's shoulder onto the screen. According to Fourth Amendment precedent, the hypothetical possibility of surveillance is enough. Monitoring this type of public activity should not cause any more Fourth Amendment concern than, say, following a terrorist's car as it travels.

Roving or Multi-Point Wiretaps

Another section of the ATA would, if enacted, allow electronic surveillance aimed at a particular individual, rather than at a particular facility or location such as a specific cell phone or computer.

The result would be that wiretaps would be issued person-by-person, not device-by-device. This change in the law recognizes the ability of terrorists (and other criminals) to change their communication devices quickly: cell phones are relatively cheap and disposable; suspected terrorists can move from one public computer to another.

Note that, again, current law is simply adjusted to the technology realities of portable phones and public computers. Note also that, again, increased pinpointing actually minimizes the chance of picking up the non-criminal speech of innocent people —such as those who might innocently use a tapped phone or computer.

Conclusion

As Attorney General Ashcroft has said, "Law-enforcement tools created decades ago were crafted for rotary telephones, not e-mail, the Internet, mobile communications and voice-mail. I regret to inform you that we are today sending our troops into the modern field of battle with antique weapons."

Our laws should not be antique weapons, either — and if these sections of the Anti-Terrorism Act are enacted, they will rightly become modern ones.


Laura Hodes, a 2000 graduate of the University of Chicago Law School, is an attorney and writer living in Chicago. In addition to writing for this site, she has published several articles on cyberlaw on The New Republic Online (www.tnr.com).

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