Red Rock Eater Digest - Court Ruling Casts Doubt Over Carnivorewriting

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``` [EPIC, EFF, and the ACLU had filed suit in the DC Appeals Court to challenge the FBI's implementation of the Communications Assistance for Law Enforcement Act (CALEA). The FBI had wanted broad authority to impose surveillance standards on the design of communications equipment, and the FCC had largely gone along. But the plaintiffs argued the Act did not give the FBI the broad authority it had sought. The court agreed. Although it left in place some of the "features" that the plaintiffs opposed (such as cell phone tracking and packet interception), the court made clear that new forms of electronic surveillance will be subject to a high Fourth Amendment standard. This decision is particularly important with the Carnivore matter now pending on Congress. (My summary of the issue is adapted from correspondence with the plaintiffs.) Reformatted to 70 columns.]

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Date: Tue, 15 Aug 2000 17:00:12 -0400 From: Electronic Privacy Information Center Subject: Court Ruling Casts Doubt Over Carnivore

FOR IMMEDIATE RELEASE CONTACT: AUGUST 15, 2000 David Sobel 202-483-1140

APPEALS COURT DECISION IMPOSES HIGH LEGAL STANDARD ON ELECTRONIC SURVEILLANCE; CALLS CARNIVORE'S LEGALITY INTO QUESTION

WASHINGTON, DC -- The Electronic Privacy Information Center (EPIC) welcomes today's federal appeals court ruling on wiretapping and other forms of electronic surveillance. David Sobel, EPIC's General Counsel, said, "The court has clarified the legal standards that law enforcement must meet before monitoring new modes of communications. The decision calls into question the legality of the FBI's controversial Carnivore system.

Today's decision was issued in a challenge brought by EPIC, other privacy groups and the telecommunications industry, seeking to invalidate technical standards for surveillance ordered last year by the Federal Communications Commission (FCC).

The U.S. Court of Appeals for the District of Columbia Circuit rejected several of the FCC standards and imposed significant limitations on the use of other surveillance capabilities. Those capabilities include information on the location of cellular phone users and law enforcement acquisition of "packet mode data," the data transmission protocol used on the Internet.

The court said that neither cellular location tracking nor packet mode surveillance can be undertaken merely under the authority of a pen register order. The court held that law enforcement agents must obtain a Fourth Amendment search warrant before they can "obtain packets from which call content has not been stripped." Carnivore involves FBI access to complete packets, and the content of the communication is "stripped" only after the data is processed by the system. According to Sobel, such a procedure is clearly at odds with the legal requirements the court announced today.

EPIC filed suit against the FBI earlier this month seeking the immediate disclosure of information concerning the Carnivore surveillance system. The FBI is under court order to reveal its timetable for the release of the requested information tomorrow (August 16).

EPIC Executive Director Marc Rotenberg said, "Today's ruling will protect privacy in new modes of communication. It will likely increase dramatically the number of cases in which government agents must obtain search warrants, particularly in cases involving the Internet." Rotenberg added that, "The decision underscores the need for full public disclosure of information concerning Carnivore. It is critical that the capabilities of the system be closely examined to assess its legality."

The D.C. Circuit decision is available at:

http://www.epic.org/calea/dc_cir_decision.html

EPIC's appellate brief is available at:

http://www.epic.org/calea/brief.pdf ```

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