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Expert Known as 'Father of the Internet' Lends Credence to FBI's Carnivore

While the witnesses called to testify before the Senate Judiciary Committee today included the usual suspects from the FBI, Department of Justice and several privacy groups, the Justice Department today gained an important ally in Vint Cerf, a senior vice president at WorldCom and a man considered by many to be one of the principal architects of the early Internet.

In a simplified discourse on the mechanics of Carnviore vis-à-vis the Internet, Cerf countered claims that the FBI's e-mail snooping device could easily be used to randomly drop in on communications between parties not placed under surveillance by a court order.

Designed to attach directly to an Internet service provider's network, Carnivore is capable of sifting through vast amounts of data to retrieve specific communications. Cerf said while it is true that Carnivore can gather more information than is called for under a court order, the device can be programmed to select only information contained in the "header" (the "To" and "From" fields), and to automatically discard the extraneous data.

James X. Dempsey, senior staff counsel for the Center for Democracy and Technology, took issue with the FBI's claim that a search for header information was the Internet equivalent of a "pen register" or "trap-and-trace" wiretap order, which culls the phone numbers of any two parties.

Leaving aside questions of whether header information in e-mails provides information typically considered "content" and therefore subject to a court order requiring much higher levels of proof, Dempsey noted that many Internet Protocol (IP) addresses are dynamically assigned and thus allow for the possibility that a given user will not have the same address from day to day or hour to hour.

Dempsey suggested the FBI should be held accountable through a series of checks and balances, and that the appropriate way to do so would be to allow ISPs to examine Carnivore's source code and modify it themselves if necessary.

But Cerf said doing so would open up a whole new can of worms.

"Leaving this software in the hands of thousands of ISP geeks strikes me as somewhat alarming," Cerf said. "If I were a member of the public wondering who was managing the software and what they were doing with it, I think I'd be a lot more concerned about ISP personnel who may not be under the same legal constraints that the FBI is under."

Donald M. Kerr, assistant director for the FBI, echoed Cerf's concerns, noting that the Justice Department already had agreed to allow a select group of university faculty to review Carnivore and report back to the DOJ.

Dempsey attacked the DOJ's process for selecting a university to chair the review panel as clunky and biased in favor of the FBI, referring to restrictions spelled out in the DOJ's proposal that prevent panel members from disclosing aspects of their findings to the general public.

"Unfortunately, the 'independent review' promised by the Justice Department at this point is so circumscribed and under such control of the FBI and the DOJ that it holds little promise of giving Congress, industry or the public reliable answers," he said.

Judiciary Committee Chairman Orrin Hatch, R-Utah, said he too was concerned about the review panel's selection process, citing an article in this morning's USAToday that quoted a half-dozen of the nation's leading universities as saying they would not submit applications to staff the review panel due to the heavy restrictions imposed by the DOJ.

When asked why so many universities objected to the DOJ's narrow guidelines for the review panel, Kerr said those same restrictions prohibited him from elaborating on the selection process.

The House Judiciary Committee, meanwhile, took up consideration of three consumer privacy bills today, two of which were drafted specifically to address the use of systems like Carnivore.

H.R. 4987, sponsored by Rep. Bob Barr, Republican-Georgia, a member of the Judiciary Committee, at its heart updates wiretapping laws to reduce the government's ability to listen in on wireless, e-mail and Internet communications.

H.R. 5018, sponsored by Rep. Charles Canady, R-Florida, who chairs the Constitution Subcommittee, seeks to accomplish much the same thing as Barr's bill. H.R. 5018, co-sponsored by Rep. Asa Hutchinson, R-Arkansas, also would count electronic communication as being inadmissible in court if it were obtained illegally, and in addition requires the government to submit annual reports on their requests to tap "stored electronic communications."

The bill also changes the definition of "pen register" and "trap and trace devices" to include e-mail, and requires the government to prove that a crime was, or is likely to be committed, in order for a judge to grant approval for an e-mail or Internet wiretap.

Kevin DiGregory, deputy assistant attorney general for the Justice Department, said the Canady bill - with its e-mail specific language - was fatally flawed.

"As we have said time and again, we believe that any legislation developed with respect to criminal law should be technology-neutral, and that there should not be different standards for trap-and-trace orders," DiGregory said.

House Majority Leader Richard Armey, R-Texas, also weighed in on the issue following today's hearing, criticizing US Attorney General Janet Reno for refusing to pull the plug on Carnivore while the review panel conducts its investigation.

"The Justice Department has not responded to our request. They have refused to suspend the use of Carnivore while the program is in question," Armey said. "Instead, Attorney General Reno has proposed to handpick a single university to review the system - a plan that is woefully inadequate."

The Justice Department is scheduled to have selected the university to staff the its Carnivore review panel by Sept. 26.

Reported by Newsbytes, www.newsbytes.com.

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