FBI defends Internet wiretapping before critical Congress

WASHINGTON -- Federal law enforcement officials faced bipartisan criticism Monday as they testified before Congress about the FBI's new Internet wiretapping technology, which critics argue could violate the privacy rights of law-abiding citizens.

At a hearing before the House Judiciary subcommittee on the Constitution, both Republican and Democratic legislators, expressed concern that federal authorities could misuse a recently developed software program called Carnivore, designed to screen e-mail messages in felony investigations. Led by subcommittee Chairman Charles T. Canady, R-Fla., and ranking member Melvin Watt, D-N.C., the panel repeatedly questioned assurances from an FBI technician that the bureau would monitor use of the system internally.

FBI Assistant Director Donald M. Kerr testified that Carnivore has been used 25 times since it was deployed two years ago, including 16 in the last year. He listed terrorism, child pornography and credit card fraud as crimes being planned or committed over the Internet and suggested that Carnivore would improve the FBI's ability to prosecute them.

To operate the software, the FBI must install it on the servers of an Internet service provider. The system came under scrutiny from Congress in April, when a lawyer who has represented ISPs complained that Carnivore would violate citizens' Fourth Amendment right to protection against "unreasonable searches and seizures."

Once implanted in an ISP's servers, Kerr said, Carnivore filters the stream of correspondence passing through the ISP and weeds out either complete messages or simply "to" and "from" addresses of court-approved targets. Whether the contents of the e-mail are included along with the address depends on the scope of the court order the FBI has obtained, Kerr said.

Rep. John Conyers Jr., D-Mich., set the tone for the hearing when he asked whether Carnivore "minimizes" the interception of nontargeted communication or "maximizes" the FBI's access to private correspondence.

"This system should not bite off more than it can chew," he said. "Should we feel comfortable with a 'trust us, we're the government' approach?"

In an interview after the hearing, witness Chris Painter, deputy chief of the Justice Department's Computer Crime and Intellectual Property section, said that extending the FBI's wiretapping capability to the Web does not break with past legal precedents.

But lawmakers on both sides of the aisle suggested that the new software broadens the scope of federal law enforcement's search activity and unnecessarily extends the FBI's reach into the territory of private ISP companies.

"Why do we need to put terminals on site at the ISPs rather than let the ISP itself turn over needed information much in the way that telephone companies do?" Conyers asked.

Kerr responded that the FBI's first choice is to let ISPs conduct searches for the bureau and then report their findings but that Carnivore is needed because not all ISP companies have the equipment to filter through their telecommunication traffic.

The FBI and Justice Department witnesses also stressed that it would be a violation of federal law for an agent to abuse the intelligence-gathering capability of Carnivore to collect information about nonsuspects.

Law professor Jonathan Zittrain of the Berkman Center for Internet & Society at Harvard Law School reduced the debate over Carnivore to the level of technology.

"It used to be that to tap your phone, FBI agents would have to pull up in a truck and sweat it out," he said. "We're just not used to the idea of its being trivially easy for the government to ... monitor our communications."