FBI’s E-Mail Surveillance Getting Boost

WASHINGTON —  Senior Justice Department officials are recommending that the FBI be allowed to continue using a controversial e-mail snooping tool against suspected criminals--with some new safeguards aimed at answering privacy concerns, law enforcement sources said Wednesday.

Atty. Gen. John Ashcroft met privately with FBI Director Louis J. Freeh on Wednesday for a briefing on the “Carnivore” surveillance program, and he is expected to announce a decision within the next few weeks on a thorny issue that pits law enforcement demands against privacy interests.

Ashcroft, regarded as a strong defender of privacy rights from his days in the Senate, inherited the controversy from former Atty. Gen. Janet Reno after it was disclosed last year that the FBI had begun using the electronic surveillance program to track the computer activities of suspects in a small number of criminal and national security investigations.

The FBI program, dubbed “Carnivore” because it can quickly get to “the meat” of a database, is capable of searching millions of e-mails per second under federal wiretap authority. But privacy advocates, civil libertarians and congressional critics say that, because the program is installed directly into a service provider’s network, authorities can abuse it by eavesdropping on the activities of all the system users.

Reno brought in an outside group last year to do a technical review of the program and also created an in-house review committee made up of senior personnel from the Justice Department and the FBI to assess the findings.

The Justice Department review team, in a report delivered to Ashcroft several weeks ago but not yet made public, concluded that Carnivore has several shortcomings but, overall, plays a vital role in helping investigators track the activities of criminal suspects, sources said.

“It’s quite clear that it’s a critical tool, and the FBI has to stay on top of changing technology,” said one official familiar with the report, who asked not to be identified. “All you have to do is tell the drug dealers that law enforcement won’t be able to do electronic surveillance on e-mail, and they’ll all drop their phones and e-mail will be the tool du jour.”

In delivering its report to Ashcroft, the task force unanimously affirmed all the recommendations of the outside review, which was completed by the Illinois Institute of Technology’s Research Institute. Several bigger-name institutions turned down the job, complaining it would not be a truly independent review because of restrictions on how it could be conducted.

Among the key proposals before Ashcroft, the official said, are: tightening the audit trail to determine which FBI personnel are using the surveillance program “so people don’t get sloppy and slip into unauthorized use”; more clearly defining what e-mail material and computer data can legitimately be reviewed by investigators; and developing a more up-to-date legal framework to match the rapid advance of technological law enforcement tools.

“This tightens up the safeguards and the ability to audit the system to really try to protect legitimate privacy concerns,” the official said. “I would view it as a tweaking.”

The findings will likely disappoint privacy advocates, who have been anxiously awaiting the final Justice Department report on the issue.

“I think it’s unlikely that the attorney general would flatly repudiate or banish Carnivore from the tools available to the FBI,” said Jim Dempsey, deputy director of the Center for Democracy and Technology, an advocacy group in Washington.

“On the other hand, I think some serious concerns have been raised about it,” Dempsey said. “This represents a departure from normal wiretap procedure in that it’s something inserted directly into the network of the service provider which the service provider doesn’t control. The fundamental problem is that it’s controlled by the government.”

Carnivore has become so notorious that the FBI is planning to change the name of the program, using a blander, numeric designation because the old flesh-eating moniker has taken on such a negative connotation.

Justice Department officials said Ashcroft is expected to meet this week with privacy advocates regarding their concerns about Carnivore and other issues.