Is The FBI's E-Mail Snooping Proper?

Lance Cpl. Christopher B. Cosgrove III, 23, of Cedar Knolls, N.J., died Oct. 1, 2006, while conducting combat operations against enemy forces in Al Anbar province, Iraq.
The Justice Department hired a Chicago-based research group Tuesday to analyze whether the FBI's "Carnivore" e-mail surveillance system has adequate protections against abuse.

Six people, four from the IIT Research Institute's Virginia facility and two legal experts who specialize in privacy issues, will begin the analysis at a laboratory in Lanham, Md. on Wednesday including senior faculty members from the Chicago-Kent College of Law.

The review of Carnivore, which has drawn criticism from Congress and civil libertarians, will begin immediately and is to be completed in December. An interim draft report will be made public for comment in late November. The final report will be released for public comment in December.

The government will continue to use the system during the study. David Sobel, counsel for the Electronic Privacy Information Center, which filed a Freedom of Information Act lawsuit to obtain documents about the system, has criticized the decision to keep it in operation while questions remain.

The department estimated the study would cost $175,000, but the exact amount will depend on time and materials consumed.

The Carnivore system, installed by the FBI on the network of Internet service providers, has software that scans Internet traffic as it moves through that provider's network. The FBI says it configures the software to capture e-mail to or from someone under investigation and that court orders limit which e-mails agents can see.

But privacy advocates say only the FBI knows what Carnivore can do, and Internet providers are not allowed access to the system. They ask why the FBI retains control of Carnivore equipment and doesn't give it to Internet providers so they can comply with court orders.

The project's goal is to see whether Carnivore increases the risk that FBI agents or someone else intentionally or unintentionally, legally or illegally, will see electronic communications they have no right to see and whether Carnivore can safeguard against that risk.

"The review team will have full access to any information they need to perform their review," said Assistant Attorney General Stephen R. Colgate, who led the selection team. "This organization has both the technical expertise and the dedication to the project to provide the most thorough, independent and timely review."

The government said 11 private and academic organizations bid to do the project.

Some academics objected to department insistence on both security checks of evaluation panel members and on veto power over any changes in that panel, saying it could exclude critics of government surveillance. They also criticized Justice's insistence on the right to edit the report.

The Massachusetts Institute of Technology withdrew from the bidding because of its objections, said a senior Justice official, who spoke on condition of anonymity.

That official said the security checks were designed only to exclude anyone wita criminal record and the veto power over changes was to prevent the government from paying for a Nobel Prize winner if the work was done by a graduate student. The editing power, the official said, was included only so business secrets of Carnivore software providers could be kept from the public.

Kerry Rowe, a senior vice president of the IIT Research Institute, said he was confident "what we find will be made available to the public." The work will be done at the institute's information technology laboratory in Lanham, Md., outside Washington, by the equivalent of six full-time workers.

Legal experts were added to the team to help evaluate how a court order would apply to the system, Rowe said. One of the team's legal experts, Harold Krent, associate dean of Chicago-Kent College of Law, said legal questions might include how Carnivore differentiates between people with the same names, or those who use aliases.

He said the system also must account for people who might be using more than one Internet service provider, such as America Online or Compuserve.

An internal Justice team headed by Colgate will review the report and recommend to Attorney General Janet Reno whether any changes are needed in Carnivore's design or use.