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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, 'trust 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
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.
Barry Steinhardt, Esq. On behalf of the ACLU Foundatio