Anti-Terror Bill Has E-Mail Clause

October 25, 2001

WASHINGTON — Civil liberties groups got a victory with a provision in anti-terror legislation that would require a judge to monitor the FBI's use of a powerful e-mail wiretap system.

The clause could help ensure that the system, once known as Carnivore, doesn't collect more information than allowed by a warrant. Carnivore critics worry that the device goes beyond traditional telephone wiretap laws and can gather data about people who are not criminal suspects.

"The concern about Carnivore has been its ability to collect too much information," said David Sobel, general counsel of the Electronic Privacy Information Center. "So it really is critical to have some means of overseeing how the technique is actually used."

The e-mail system is a device installed at an Internet company to capture e-mails sent or received by criminal suspects.

The clause inserted in anti-terror legislation by House Majority Leader Dick Armey would require investigators to tell a judge every detail about a Carnivore installation, including who installs and has access to it, its configuration and what it collects.

The bill was passed Wednesday by the House and may become law by the end of the week.

The report required by the Armey clause would go to the judge no more than 30 days after expiration of a wiretap order. It would be kept secret but could be used as a basis for the judge to consider whether police overstepped their authority.

"This language will reassure the public that these new powers will not be misused," Armey said.

Armey, R-Texas, has been a staunch critic of Carnivore, now called DCS 1000. His spokesman, Richard Diamond, said Armey told Rep. James Sensenbrenner, R-Wis., to ensure the language stayed in the final version of the legislation. The Justice Department did not object, Diamond said.

"It's nothing that would impede the main goal, which is to get the bad guys," Diamond said. "It's not a hurdle to any investigation if they're following the rules."

Authorities have used Carnivore-type tools more than 25 times in all types of criminal cases, to catch fugitives, drug dealers, extortionists and suspected foreign intelligence agents.

The investigation into the Sept. 11 attacks also has moved online, as agents track down e-mail addresses and Web sites used by the airline hijackers who wrecked the World Trade Center and the Pentagon.

Some of the wiretapping and electronic surveillance portions of the terrorism legislation, which largely expands such powers, expire at the end of 2005. The Carnivore reporting requirement is permanent, however.

Robert Corn-Revere, a First Amendment specialist who defended Internet provider Earthlink when the company refused to use Carnivore, called the clause an improvement.

"There are virtually no accountability procedures in the law before this amendment," Corn-Revere said.