[Politech] Orin Kerr on why the FBI "retired" Carnivore [priv]

From: Declan McCullagh (declan@private)
Date: Thu Jan 20 2005 - 10:07:46 PST


http://volokh.powerblogs.com/archives/archive_2005_01_14.shtml#1106113372

The Fake Carnivore Debate, RIP:

The Associated Press reports that the FBI has retired its "Carnivore" 
Internet surveillance tool. (It actually happened about two years ago, 
but no one knew about it until now.) The Carnivore debate was premised 
on a profound misunderstanding of Internet surveillance practices. With 
the Carnivore era over, it's a good time to look back at how the press 
was able to get the story so wrong.

   The FBI created the Carnivore tool around 1999 to create a more 
privacy-protecting way to conduct Internet surveillance. At that time, 
commercial surveillance tools were not very protective of privacy; 
private sector companies have broader surveillance rights than the 
government, which meant that there was no incentive for private 
companies to use privacy-sensitive tools when they needed to moinitor 
their network. The FBI was finding that in rare cases, ISPs could not 
execute court orders on their own and insisted that the FBI itself had 
to conduct court-ordered surveillance itself; when it did, FBI agents 
found that no commercially-available real-time surveillance tools (known 
as "sniffers") were sufficiently privacy-protective for the FBI to be 
comfortable using it given the legal constraints it faced.

   The FBI's response was to order its tech people to try to improve the 
filtering technology of commercial tools. The FBI came up with better 
filter technologies that could ensure that no over-collection would 
occur. The preexisting commercial filter had been dubbed "Omnivore" 
within the FBI, and the new filter was much more precise  it only took 
the "meat" that the tool was designed to capture, and did not collect 
any evidence beyond that described in the court order. As a result, the 
FBI dubbed the new privacy-enhanced tool "Carnivore."

   Of course, this isn't the story that you heard in the press. Privacy 
advocates were quick to capitalize on the precious gift the FBI handed 
them: the name itself was an indictment of sorts, making it easy to 
create the impression that the FBI had created a monster. Of course, 
reporters had no idea that Carnivore was actually a privacy-protective 
version of a common computer tool, and privacy advocates certainly had 
no incentive to tell them that. As a result, the MSM made a big ruckus 
about Carnivore and scared everybody into thinking that the FBI had 
created a powerful surveillance tool.

   I was in government at the time the story broke, and was rather 
astonished by the misunderstanding. In a preview of the debate over the 
Patriot Act, the MSM got it exactly wrong: it couldn't tell the 
difference between an effort to protect privacy and an effort to invade 
it. This led, among other things, to a movement among some civil 
libertarians urging Congress to impose a moratorium on Carnivore -- a 
movement that, if successful, would have forced the FBI to use more 
privacy-invasive tools rather than more privacy-protective ones. (In 
case you're wondering, government spokespersons tried to explain this at 
the time and since, but reporters simply did not believe it. When they 
bothered to report the government's view at all, it was usually at the 
end of the article in a single sentence clearly designed to leave the 
impression it was not credible.)

   Why did the FBI retire Carnivore? For a reason I explained in an 
article published two years ago on the Patriot Act (see footnote 247 if 
you're really interested): in the last few years, the private sector 
finally caught up with the government. Commercial surveillance tools now 
have the same privacy-enhancing filter technology that the Carnivore 
tool has, meaning that the government no longer needs to use Carnivore. 
Strange, but true.

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