WASHINGTON — Lawmakers of both parties grilled FBI officials Monday over the bureau's use of "Carnivore," a device designed to monitor and capture e-mail messages in a criminal investigation.
Rep. Charles Canady, R-Fla., called the hearings amid concerns from privacy groups about an ordinary computer filled with special software that the FBI calls a "reasonable balance" between privacy and law enforcement in an age where crime has gone online.
"Carnivore raises the question as to whether existing statutes protecting citizens from 'unreasonable searches and seizures' under the Fourth Amendment appropriately balance the concerns of law enforcement and privacy," said Canady, chairman of the House Judiciary Committee's Constitution panel.
"There seems to me to be a growing level of generalized concern about Big Brother-ism that I suspect is being fed by the increasing electronic world," said Rep. Melvin L. Watt, D-N.C.
FBI officials defended Carnivore and the bureau's use of the tool to Canady's panel, saying it is used only with proper legal authorization — in many cases coming from both a senior Justice Department official and a judge.
The FBI likened Carnivore to a traditional telephone tap, saying both need probable cause to be undertaken.
Carnivore is the term used for the entire system — a computer running the Microsoft Windows NT operating system and software that scans and captures packets, the standard unit of Internet traffic, as they travel through an Internet Service Provider's network. The FBI can install a Carnivore unit at an ISP's network station and configure it to capture only e-mail going to or from the person under investigation.
FBI officials said Carnivore has been used 25 times, including 16 times this year. None of those cases has yet gone to trial, so the FBI would not disclose detailed information about them.
Donald M. Kerr, director of the FBI's laboratory division, said Carnivore searches only the sender and recipient lines of e-mail, not the subject line, as was previously reported. It does not search through the message content for keywords, nor does it monitor Web browsing — except for Web-based e-mail — or Instant Messaging, just e-mail traffic, authorities said.
Privacy advocates and some lawmakers voiced concern that only the FBI truly knows what Carnivore does, since after it is installed it is neither supervised nor checked by an ISP's technicians; there isn't even a mouse or keyboard attached for someone to access the machine.
"When you see some things that have happened here in Washington, it gives one reason to worry," said Judiciary Committee Chairman Henry J. Hyde, R-Ill.
To find out, the American Civil Liberties Union filed a Freedom of Information Act request last week for Carnivore's source code, the inner workings of how the device functions.
The FBI gave a preview of its objections to the FOIA request, explaining why the bureau wouldn't want Carnivore's innermost details to be public.
"We would have a problem with full open disclosure, because that, in fact, would allow anyone who chose to develop techniques to spoof what we do an easy opportunity to figure out how to do that," Kerr said.
FBI officials reiterated an earlier plan to show an independent panel of academic and industry experts exactly how Carnivore works, and opened the door to regular checks.
Deputy Associate Attorney General Kevin V. DiGregory said that for a "rogue FBI agent" to circumvent the law, "he would need to engage the aid of technical people, perhaps even technical people at the Internet service provider, and he would also have to find some way to cover up or change the audit trail that is left by the system so that it doesn't expose his going beyond the court order."
Legislators seemed unconvinced.
"I don't know if we have any way of verifying that the technological part of the response to my question that you've given me, and I know that unfortunately in the past, we've had many agencies, including law enforcement, that have gone beyond the scope of their responsibility," said Rep. John Conyers, D-Mich., the Judiciary Committee's top Democrat. "There's hardly anything new about that."
Web site: www.house.gov/judiciary/con07241.htm