Vol 7 No 1 - Roger Williams University School of Law

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provision,143 but judging from the application of exclusionaryprovisions applicable to wire and oral communications, it is notencouraging that such a provision would be effective. Statisticsindicate that a defendant’s after-the-fact challenges to theauthorization or conduct of oral and wire surveillance are rarelysustained.144 Between 1985 and 1994, judges nationwide granted138 suppression motions while denying 3,060, for a 4.3%suppression rate.145 In light of this data, it seems highlyimprobable that even after the enactment of an applicableexclusionary provision, any party attempting to challenge theconduct of an electronic surveillance utilizing Carnivore would besuccessful. From this analysis, it is presumable that the use ofCarnivore would not be deemed to violate the privacy protectionsembodied in Title III and the EPCA.CONCLUSIONThe information and analysis presented in this commentsupports the conclusion that the FBI’s Carnivore surveillancedevice is likely to be in compliance with both constitutional andfederal statutory requirements. However, in light of citizenconcern and uncertainty concerning the utilization of Carnivore, Ibriefly propose two plausible solutions that would likely quell, orat least diminish, these fears and concerns while still achievingthe government objective. These proposals are as follows:First, the FBI could replace Carnivore with a less invasivesurveillance system. Since the existence of Carnivore was madepublic last year, several software companies have developedalternatives. One such alternative, “Altivore,”146 works much likeCarnivore. However, unlike Carnivore, Altivore allows for thecollection of just one stream of data as the information flowsthrough the device, thus reducing some fear that unauthorizeddata is being intercepted.147143. See Hearings on H.R. 5018, Electronic Communications Privacy Act of 2000;H.R. 4987, Digital Privacy Act of 2000; and H.R. 4908, Notice of Electronic MonitoringAct, 106th Cong. (2000) (statement of Robert Corne-Revere).144. See Robert Plotkin, Breaking the Code: Excluding Illegal Wiretap Evidence, 10BNA Crim. Prac. Manual 432 (1996).145. See Dempsey, supra note 46, at 77.146. See Ann Harrison, Security Software Vendor Develops Carnivore E-MailMonitoring Alternative, Infoworld Daily News, Sept. 21, 2000.147. See id.
Second, ISPs should be given some collaborative role in theconduct of the surveillance. Carnivore, in departure fromordinary telephone taps, inserts the FBI into the ISP’s network.148In fact, the ISP has no role in the surveillance once the ISP assiststhe FBI in connecting to its network.149 Like CALEA, the EPCAshould be amended to require ISP assistance in the collection ofdata from its network. In addition, the FBI should make thetechnology of Carnivore, including the source code and the right tomodify it, available to any ISP that needs to comply with asurveillance order. The involvement of the ISP would serve toconfirm exactly what the operating capabilities of the systemreally are.Obviously, these recommendations are not all of the possiblesolutions that could effectively balance the interest of Internetusers with that of the Government. Yet, whatever resolution isselected, American society must act quickly if it wishes to preservefundamental Fourth Amendment protections as it moves furtherand further into the technology age. Without a doubt, in light ofthe uncertain and inadequate legal and judicial guidancecurrently applicable to the Internet forum, we have a very longway to go.Patricia K. Holmes148. See Dempsey, supra note 19, at AO3.149. See id.; see also Hearings 1, supra note 15 (statement of Sen. Patrick Leahy).
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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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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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