Vol 7 No 1 - Roger Williams University School of Law

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FBI’s Carnivore: Is the GovernmentEating Away Our Right of Privacy?INTRODUCTIONWith the birth of the Internet has come a virtual reformationof how human society communicates. The exact number ofInternet users is nearly incalculable, but recent assessmentsestimate that nearly 300 million people worldwide are currentlyonline.1 These users can travel relatively freely among themillions of currently active Internet sites.2 The growth of thiscommunications medium in the last decade has been tremendous,and promises to continue at such a pace. The United StatesDepartment of Commerce has reported that less than 40 millionpeople worldwide had access to the Internet in 1996.3 Thisnumber jumped to more than 100 million people by the end of1997.4 Further research by the Department has indicated thatthe number of people and businesses using the Internet doublesevery 100 days.5 Thus, the Internet presents unprecedentedopportunities for global communications and commerce. However,it also poses dramatic risks to personal privacy. Every dayAmericans use the Internet to access and transfer vast amounts ofprivate data. From electronic mail and business transactions toshopping habits, web surfing profiles can reveal detailedblueprints of how people live.6 As more of our lives are conducted1. See Gavin Skok, Establishing a Legitimate Expectation of Privacy inClickstream Data, 6 Mich. Telecomm. Tech. L. Rev. 61, 63 (1999).2. See id.3. See Thomas T. Reith III, Consumer Confidence: The Key To Successful E-Commerce In The Global Marketplace, 24 Suffolk Transnat’l L. Rev. 467, 486 n.3(2001).4. See id.5. See id.6. See Carnivore’s Challenge to Privacy and Security Online: Hearings onCarnivore Before the House Judiciary Subcomm. on the Constitution, 106th Cong.(2000) [hereinafter Carnivore’s Challenge] (statement of Alan B. Davidson, Staff237
online and more personal information is transmitted and storedelectronically, the result has been a massive increase in theamount of sensitive data available to interested third parties,including the government.7 The question thus presented iswhether our government has taken advantage of this availability.Although not conclusive, some evidence suggests that theutilization of electronic surveillance for monitoring criminalactivity has practically exploded over the past decade, arguablyreplacing more traditional investigatory tools.8 Current dataindicates that this pace is unlikely to diminish. The FBI aloneestimates that over the next decade, given planned improvementsin the digital collection and analysis of communications, itsrequests for electronic surveillance orders will increase 300percent.9 It appears that these planned improvements, as well asadditional surveillance requests, may well be underway.During Congressional hearings in April, 2000, Robert Corn-Revere, an Internet and communications lawyer in Washington,D.C., first divulged evidence of the existence of “Carnivore,” anelectronic surveillance device developed by the FBI.10 Respondingto concerns from various privacy groups and others, formerAttorney General Janet Reno ordered that an independenttechnical review of the system be completed by December 8, 2000,in order to substantiate Carnivore’s compliance with bothconstitutional provisions and federal statutory wiretap laws.11The review, completed by the IIT Research Institute (IITRI), adivision of the Illinois Institute of Technology, essentially foundthe system to be legally compliant and determined most concernsover invasion of individual privacy were unsupported.12Despite winning a favorable review by the university, theCarnivore device continues to raise strong concerns about privacyCounsel, Center for Democracy and Technology).7. See id.8. See id.9. See id.10. See John Hall, Privacy Beginning To Be A Top Issue, Rich. Times Dispatch,July 16, 2000, at F2.11. See Frank James, U.S. Seeks University Experts to Review FBI’s E-MailProbes, Chi. Trib., Aug. 25, 2000, at N20.12. See Institute’s Report on Carnivore Causes Uproar Among Critics, 4 Telecomm.Indus. Litig.Rep. 12 (2000).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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