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The Electronic Privacy Information Center (EPIC) has won another round in its effort to obtain further information regarding “Carnivore,” the FBI’s Internet surveillance system. In an order dated March 25, a federal trial court in Washington, D.C., commanded the FBI to search for further records relating to Carnivore within 60 days. In tandem with records already produced, EPIC may soon get to the heart of Carnivore. The Carnivore Internet monitoring system raises questions about the appropriate balance between privacy and national security/law enforcement interests. THE LAWSUIT EPIC’s lawsuit emanated from its Freedom of Information Act (FOIA) request to the FBI for “the release of all FBI records concerning the system known as ‘Carnivore’ … for the interception and/or review of electronic mail (e-mail) messages.” Not satisfied with the FBI’s response to its FOIA request, EPIC filed suit in U.S. District Court to obtain the requested information. There was some negative publicity for the FBI, and apparently as a result, the FBI changed the name of Carnivore to DCS1000. However, a simple name change did not alter EPIC’s concern about potential privacy violations, so the lawsuit proceeded. FBI PRODUCTION OF INFORMATION AND REQUEST FOR JUDGMENT The FBI ultimately processed 1,957 pages of material and released 1,665 pages to EPIC. The FBI then sought judgment in its favor, arguing that it had discharged its obligations. EPIC’S CLAIM FOR FURTHER RECORDS EPIC responded with its worry that the FBI had not adequately searched for documents within FBI divisions, including the offices of the General Counsel and Congressional Public Affairs that would have dealt with the legal and policy implications of Carnivore, as opposed to the system’s technical aspects. The FBI had searched its Central Records System (CRS), and the files of the Electronic Surveillance Technology Section (ESTS) and the Contracts Unit. While records from all divisions, including the offices of General Counsel and Congressional Public affairs, are indexed to CRS, the FBI did not contend that all records from those divisions would be found on CRS. COURT DECISION In evaluating the positions of the FBI and EPIC, the district court properly recognized under FOIA that the inquiry is not whether any further documents conceivably might exist, but whether the government’s search for responsive documents was adequate. On balance, the district court found that EPIC raised a “positive indication” that the FBI may have “overlooked” records in certain FBI divisions, especially the offices of General Counsel and Congressional and Public Affairs. Thus, the court ordered the FBI within 60 days to search for further responsive records, including but not limited to the files of the offices of General Counsel and Congressional and Public Affairs. THE UPSHOT Plainly, there should be some oversight when it comes to governmental e-mail surveillance, especially when dealing with citizens who have no nexus whatsoever to illegal activities. It appears that EPIC has received and will receive FBI information on Carnivore. EPIC’s lawsuit began before 9/11 at a time when privacy worries seemed to trump national security and law enforcement concerns. Now more than ever, the government takes the position that information that will compromise national security and law enforcement activities should not be provided. That position is well taken, and the FOIA itself contains exemptions that shield revelation of such material. Of course, some information may reveal potential privacy threats while also touching on national security and law enforcement matters. For such sensitive information, judges likely will be called upon to review information “in camera” on a document-by-document basis to decide whether disclosure or withholding of information is appropriate. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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