In Unique Tactic, ACLU Seeks FBI Computer Code On
"Carnivore" and Other Cybersnoop Programs
ACLU Press Release
July 14, 2000
WASHINGTON -- In what may be the first request of its kind,
the American Civil Liberties Union is asking the Federal
Bureau of Investigation to disclose the computer source code
and other technical details about its new Internet
wiretapping programs.
In a Freedom of Information Act (FOIA) request sent today to
the FBI, the ACLU is seeking all agency records related to
the government e-mail "cybersnoop" programs dubbed
Carnivore, Omnivore and Etherpeek, including "letters,
correspondence, tape recordings, notes, data, memoranda,
email, computer source and object code, technical manuals,
[and] technical specifications."
Computer "source code" is the set of instructions for a
program written by its creators, which is compiled into
"object code" which can be read by machines.
"Right now, the FBI is running this software out of a black
box," said Barry Steinhardt, Associate Director of the ACLU
and author of the letter. "The FBI is saying, ītrust us,
we're not violating anybody's privacy.' With all due
respect, we'd like to determine that for ourselves."
To the ACLU's knowledge, the request for program source code
is the first of its kind. But Steinhardt said that two
federal appeals court rulings that computer code is a form
of speech, no different from any other written document,
support the ACLU's demand under the the Freedom of
Information Act. The Act gives Americans broad rights to
obtain written information held by the federal government.
Technical data on traditional telephone wiretaps is
currently available in public documents, Steinhardt said.
Similar access to the computer source code of Carnivore and
other such programs is necessary to determine just how the
software operates and whether e-mail privacy is being
violated.
The unbridled uses of these technologies "cry out for
Congressional attention if we are to preserve Fourth
Amendment rights in the digital age,"the ACLU said in a July
11 letter to members of Congress.
Revelations about the Carnivore program also prompted calls
for disclosure from lawmakers concerned about privacy. In a
statement issued on July 12, House Majority Leader Dick
Armey called on Attorney General Janet Reno and FBI Director
Louis Freeh to "stop using this cybersnooping system until
Fourth Amendment concerns are adequately addressed."
In addition, the House Judiciary Committee Subcommittee on
the Constitution has scheduled a hearing on the matter for
Monday, July 24. The ACLU has asked to submit testimony to
the Committee.
The FBI has 20 business days to respond to the FOIA request.
The ACLU is seeking a response on an expedited basis, the
letter said, "because this information relates to impending
policy decisions to which informed members of the public
might contribute."
"If our request is denied in whole or part, we ask that you
justify all deletions by reference to specific exemptions of
the act," the ACLU letter concluded.
The ACLU's letter to the FBI follows.
July 14, 2000
Attention:
John Kelso Jr.
Federal Bureau of Investigation
Chief, FOI/PA Section, Rm. 6296 JEH
Washington, D.C. 20535-0001
Dear Mr. Kelso:
We are writing pursuant to the Freedom of Information Act (5
U.S.C. Sec. 552) to request all agency records including
letters, correspondence, tape recordings, notes, data,
memoranda, email, computer source and object code, technical
manuals, technical specifications, or any other materials
held by the Federal Bureau of Investigation regarding the
following:
1. The computer system, software or device known as
"Carnivore", which has been or is currently used by the FBI
in connection with trap and trace and pen register orders
served on Internet Service Providers or in connection with
orders for the interception of the content of electronic
communications served on Internet Service Providers;
2. The computer system, software or device known as
"Omnivore", which has been or is currently used by the FBI
in connection with trap and trace and pen register orders
served on Internet Service Providers or in connection with
orders for the interception of the content of electronic
communications served on Internet Service Providers, and
3. The computer system, software or device known as
"EtherPeek", which has been or is currently used by the FBI
in connection with trap and trace and pen register orders
served on Internet Service Providers or in connection with
orders for the interception of the content of electronic
communications served on Internet Service Providers.
We seek a waiver of fees associated with the fulfillment of
this request for all search and processing fees, pursuant to
Section 552(a)(4)(A)(ii)(II) of the Freedom of Information
Act. Records are not sought for commercial use, and as a
representative of the news media, the American Civil
Liberties Foundation (ACLU Foundation) qualifies for a fee
waiver under this provision of the FOIA. The organization
meets the criterion laid out in National Security Archive v.
Department of Defense, where a representative of the news
media is defined as an entity that "gathers information of
potential interest to a segment of the public" and "uses its
editorial skills to turn raw materials into a distinct work,
and distributes that work to an audience." 881 F. 2d at
1387. The ACLU Foundation publishes newsletters, frequent
press releases, news briefings, right to know handbooks, and
other materials that are disseminated to the public. Its
material is widely available to everyone including tax
exempt organizations, not-for-profit groups, law students
and faculty for no cost or for a nominal fee through
itspublic education department. The ACLU Foundation
disseminates information through publications available
on-line at www.aclu.org as well.
In addition we request a fee waiver for duplication costs
because disclosure of this information is in the public
interest. It is likely to contribute significantly to the
public understanding of the activities of the government.
The ACLU Foundation is a nonprofit 501(c)3 research and
education organization working to increase citizen
participation in governance issues. The ACLU Foundation is
making this request specifically for the public's enhanced
understanding of lawfully authorized wiretapping, its
relationship to constitutional guarantees of privacy as well
as an understanding of global technological developments in
wire and electronic networks that facilitate and expedite
such wiretapping. The public's interest is particularly
pertinent in light of advancing communications technology
and the rapid growth of the World Wide Web. These
developments have greatly increased the
communicationsinterconnectedness of all the countries in the
world, especially technologically advanced nations like the
US and the Netherlands.
We also seek expedited review of this FOIA request because
this information relates to impending policy decisions to
which informed members of the public might contribute.
Timely public access to these materials is necessary to
fully inform the public about the issues surrounding
communications interception and related technological
developments.
If our request is denied in whole or part, we ask that you
justify all deletions by reference to specific exemptions of
the act. We expect you to release all segregable portions of
otherwise exempt material. We reserve the right to appeal
your decision to withhold any information or to deny a
waiver of fees.
We look forward to your reply within 20 business days, as
the statute requires under Section 552(a)(6)(A)(I).
Thank you for your assistance.
Sincerely,
Barry Steinhardt, Esq.
On behalf of the ACLU Foundation