FBI must cough up Carnivore info

Yes, John, the last one you mentioned was the one I was referring to. Pete

 

Hi John,
You can beat me up any old time. I had to get David's permission by phone, and he was out, to post this from his website.  I normally do that, even though I have a hard copy of it myself.

This is the document that everyone is writing about. I know you are more interested in my opinions at this point so I will tell you that I was disapppointed in the MEMORANDUM ORDER , you and I have similar veiws on the subject of privacy, but nevertheless this is really what happened that day.

Reading it now, if you were to write up a summary of what it  means and what was decided by JUGDE JAMES ROBERTSON on this FOIA Civil Action...what would you say?


Memorandum Order.
Case: Electronic Privacy Information Center v. Department of Justice, et al.
Court: U.S. District Court for the District of Columbia.
Case Number: No. 00-1849(JR).
Date: March 25, 2002.
Source: Tech Law Journal transcribed from the original in the Court's file. The original also included a clerk's stamp stating that it was filed on March 25, 2002. The original also included a handwritten pleading number: 35.

http://www.techlawjournal.com/courts/epicvdoj/20020325order.asp



UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER  
Plaintiff,

v.

DEPARTMENT OF
JUSTICE, et al.,

Defendants.
:  
:
:
:
:
:
:
:
:
:
: Civil Action No. 00-1849 (JR)

MEMORANDUM ORDER

This case involves plaintiff's FOIA request to the FBI for the "release of all FBI records concerning the system known as 'Carnivore' and a device know as 'EtherPeek' for the interception and/or review of electronic mail (e-mail) messages." Defendant's search resulted in the processing of 1,957 pages of material to plaintiff (with some pages redacted). Def.'s Mot. for Summ. J. at 1. On August 1, 2001, defendants moved for summary judgment. Plaintiff responded with a motion to stay the proceedings pending discovery, arguing that it needs discovery as to the adequacy of FBI's search for documents responsive to its FOIA request. Defendants opposedd the granting of any discovery, and moved for a protective order.

The heart of the discovery dispute appears to be plaintiff's concern that the FBI did not adequately search for documents in FBI divisions, including the offices of General Counsel and Congressional and Public Affairs, that would have dealt with the legal and policy implications of Carnivore, as opposed to the system's technical aspects. In response to plaintiff's FOIA request, the FBI search its Central Records System (CRS), the files of the Electronic Surveillance Technology Section (ESTS) in Quantico, Virginia, and the Contracts Unit (based on information from ESTS personnel regarding contractor involvement). Decl. of Scott Hodes ¶¶ 18-20. Although records from all FBI divisions, including the offices of General Counsel and Congressional and Public Affairs, are indexed to CRS, the FBI does not appear to contend that all records from those divisions would necessarily be found on CRS. Id. (underscore) P 15; Pl.'s Mot. to Stay at 6-9 (raising this issue).

In evaluating the adequacy of an agency's search for records responsive to a FOIA request, the "issue is not (underscore not) whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal citations omitted) (emphasis in original). And agency "cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested." Valencia-Lucena v. United States Coast Guard, FOAI/PA , 180 f.3d 321, 326 (D.C. Cir. 1999) (internal citations omitted). "f a review of the record raises substantial doubt, particularly in view of well defined requests and positive indications of overlooked material, ... summary judgment is inappropriate." Id. at 326 (internal citations omitted). Plaintiff has raised a "positive indication" that the FBI may have overlooked documents in other FBI divisions, most notably the offices of General Counsel and Congressional and Public Affairs, that would be responsive to plaintiff's request for "all FBI records concerning the system known as 'Carnivore' and a device know as 'EtherPeek' for the interception and/or review of electronic mail (e-Mail) messages."

It is according this 25th day of March 2002,

ORDERED that defendants conduct and complete within 60 days of the date of this order a further search of FBI records reasonably expected to produce the request information, including (but not necessarily limited to) the files of the FBI offices of General Counsel and Congressional and Public Affairs.

It is

FURTHER ORDERED that plaintiff's motion to stay the proceedings [#29] is denied without prejudice to its renewal upon completion of the further search and the disclosure of any responsive documents thereby located, and it is

FURTHER ORDERED that defendant's motion to substitute the Department of Justice as the proper defendant [#26-1] is granted.

______________________
JAMES ROBERTSON
United States District Judge

 

Hi Response,

Welcome from me too.

Would you mind to tell me why you were disappointed?
Sorry, my English and knowledge about these kind of things is not so big....
Thanks!  

And thanks to everyone who contributed to this thread sofar!

 

Dear Response:

For some reason you do not want to tell us why you posted such a bizarre reply to the first post. The paragraph you pasted was the paragraph supporting the FBI's position and the standard cover that the IIT study somehow proved that the FBI has been telling us the truth all along.

I HAVE to ask again: WHY did you select the FBI- defending paragraph to paste in as your post as your response to the first mention of the EPIC victory? It wasn't until I listed the way things REALLY are that you seemed to change your tune. I'm not "beating you up" Response, it's just that you have NOT given an answer to a very simple question. PLUS, you have not explained if that was not YOUR position why you posted that with the name of "Response." Obviously meaning that was your response!

Where you stand on Carnivore and where you stand on the 3-25 decision by Judge Robertson is two different things. If I understand you right, you were not happy with the order of 3-25? Where do you stand on Carnivore?

Now, your challenge - You should also know this is something I follow daily as well and your talk about having a "hard copy" the day of the ruling and all of that means nothing - SO DID I!

1. I didn't read David Carney's text transcript on the Tech Law Journal site until just now. I'm glad I did because the text transcription on his site is wrong and there are several KEY omissions. For whatever reason, his transcription differs from the filed original of the actual order which can be viewed at:
http://www.epic.org/privacy/carnivore/court_order.html
Rest assured this will be taken care of.

2. The omissions are as follows:

A. There is a missing sentence in the text transcription immediately following the order for the FBI to continue their search. It should read as follows:
"It is further ordered that plaintiff's motion to stay the proceedings is denied, and defendant's motion for a protective order is denied."

For some reason, Response, the text transcription confuses two paragraphs and places the phrasing of one with the other. The paragraph above is all there is to that. The text transcription completely left out the Judge's refusal to grant the FBI a protective order. This was a BIG victory for EPIC.  You didn't mention that.

The next paragraph is HUGE and it is missing completely from the text transcription (fire the typist):

"It is further ordered that defendant's motion for summary judgment is denied without prejudice to its renewal upon completion of the further search and the disclosure of any responsive documents thereby located."

Response, the above is where you see the convolution of paragraphs. The "renewal upon completion" sentence belongs in THIS paragraph -- NOT the other. BIG difference. This was a huge blow to the FBI for Judge Robertson to not throw this all out on summary judgment.

The final portion WAS in the text transcription which was an expected defeat for EPIC. That was the judge granting the motion for the requested substitution asked for by the FBI and the DOJ -  for DOJ to be the sole defendant. No biggie.

Bottom line on this is simple: The transcription you relied on left out two of the three big wins by EPIC in this ruling. If you have a hard copy of the ruling why did you not quote from that rather than the flawed text transcription which made the ruling look less than victorious for EPIC?

1. FBI is ordered to continue the search for sixty days.
2. FBI request for summary judgement was denied.
3. FBI request for protective order was denied.

That's all that really mattered to keep this case alive and not looking good for the Department of Justice.

How would I write the summary? A BIG victory for EPIC.
How would I have written it based on the flawed text translation you relied on? Disappointed.

But, you had a hard copy the day of the ruling. Why didn't you know this? Why did you rely on Carney's Tech Law Journal for a transcription?

I have met your challenge. Now, could you meet mine and explain why you seemed to clearly be defending the FBI and Carnivore with your choice of paragraphs that you pasted as your post (and your choice of username which seemed to indicate that paragraph was your "response")?

I eagerly await your reply. Thanks for the heads-up on the translation errors on Carney's site. Again, the original document can be viewed at http://www.epic.org/privacy/carnivore/court_order.html
Scroll to the bottom and read the missing sentences, that were nowhere in your post, which gave THREE big victories on March 25th to EPIC and was a BLOW to the FBI/DOJ.

Regards,

John

 

I look forward to seeing this thread when it becomes a movie.  

 

In case the text translation at Tech Law Journal is fixed by the time anyone reads this, rest assured that as of 1:40 a.m. EST on April 4th the missing sentences were still there. If it is fixed and you want to see what "Response" was relying on, here is the cached version from Google -
http://216.239.33.100/search?q=cache:cp89vTD9svYC:www.techlawjournal.com/courts/epicvdoj/20020325order.asp+tech+law+journal+%22memorandum+order%22&hl=en

 

Ahhh... Truth & Justice now is better than any movie.

John is doing a smashing job as counselor, eh wat?

 

Indeedly-doodly.  And I hope that Response is who we think he is, and that the Writearrange persona will be resurrected.  He's a good man to have around.

 

Hi John,
Yes I knew the .txt at David's site was flawed. I had already posted the link to the Page at Epic here for everyone, which by the way then links to his site with a statement saying that" one can get the text versions there." That of course is not totally accurate as both of us now know.

I do not think anyone at Epic realizes that...do you?



When I spoke to David on the phone I did not tell him that it was flawed but I did let him know that the phone number he had given in his privacy statement was incorrect. He had not updated that since 1999. How I tracked down his current phone number is another story. Nevertheless he thanked me. I have not gone back to see if he had made that change yet.

It did not take you long, also ,to figure out that my original post did not come out of the year 2000 news blurb but rather the recent one that Paul started out this thread.

You had then decided to make some other contacts to get what we both consider inaccurate  reporting. I like your style. I thought about doing the same thing with David at his legal site, but the poor guy seemed over worked....he had recently moved (the reason for the wrong number), and if people do not start subscribing to his newsletter his site will soon be history. He will not be able to keep the thing going. It is getting tough all over out there.

I guess that is one of the reasons I did not call him out on the Epic vs. DOJ.

I thought about cleaning up his text by adding the missing bits before I posted it here. But then I could not have kept my promise to him that I would give him hyperlink credit in this forum.

Great detective work, John.

"disinformation by omission" seems to be a common theme on the Internet and they linger there with a life of their own for all to see. I have not trusted the Internet  for years.


I also noted that the hard copy I have of that ruling is also different that then one posted by Epic at their site.
That also puzzled me...but the difference is minor...even the clerk of the court is allowed to make changes. Must be a rev. number in there someplace.

You stated "Thanks for the heads-up on the translation errors on Carney's site".

You are welcome, John, and I too think you are doing a smashing job.


I will make a statement to you now.

This thread would have died a long time ago had I not posted and continued to do so. You all would have moved on to the new one Pete posted which is equally disturbing in it's content. Not many had posted there last time I checked. But this thread is still popular no matter what icon Zhen had set up to alert the members.

It does not hurt my eyes.

I seem to be the real focus. That usually happens, as Pete pointed out, when people are not totally upfront.

The perception is "they have something to hide."
For others, it is even worse.

The other fact is that " if "they are not part of the community at large, Emotions run rampart and the issues of privacy coupled with "rights" of a group to remain protected as opposed to the masses becomes the real focus.

That seems to be a big struggle here since I had joined.

Many of you were not even here then. But you are now.

It is an interesting global neighborhood you have created. FanJ is doing a good job.


Be Well,

John

 

Hello, Response:

You wrote a lot, but I have to assume you are not going to explain anything so I guess I'll let that go. You have to understand the reason you became the "focus" was contradictory statements.

1. Posting what seems clear was a defense of Carnivore with your pasting the one paragraph which cites a study that has been roundly discredited.

2. You said you were disappointed in the court's ruling of March 25. You offered a challenge to read the order, which you posted, and see how I would summarize it. I guess you thought I would agree that the order was not a real victory for EPIC. But, as noted above, you left out the portions that made it a slam-dunk victory for Epic and a blow to the DOJ and Carnivore.

3. You now say you knew of those omissions before you made your post and offered your challenge. If that is true, that is very puzzling. Why would you not have mentioned that you had left out the portions that made EPIC's victory - a victory? (No, please, I don't want to really know. We are all thoroughly confused enough by now.)

4. You said in your last post, "I too think you are doing a smashing job," referring to a post by a couple of our members. I think you very well know that the "smashing job" they were referring to is shedding light on the truth and destroying your credibility. Why was that important? Because you said one thing, then another, then another, tried to make me look like I was wrong about the EPIC vs DOJ case, and generally have been all over the map on this issue, one that is VERY IMPORTANT to me, and to a lot of other freedom-loving people, not only in America, but around the world.

5.  Though this thread has focused on you because of your rather odd original post, and confusing follow-ups, it has also served a purpose in hopefully getting members and visitors here interested in the ongoing EPIC suit against the FBI/DOJ.

Yes, EPIC does now know of the error in the text translation you based your "disappointment" of the ruling on (even though you now say you knew it had left important information out) so I don't quite understand why you were disappointed. But, whatever.

About the other thread involving the Office of Homeland Security -  I agree completely that the thread is important. In fact, Pete started the thread after I posted the following in THIS THREAD on April 3rd -

So you are correct, I pointed out how important THAT was and also pointed out we were spending time having to sort out truth from fiction concerning this suit - due to your posts. I wasn't going to abandon this until the lights had been turned on, and sufficiently bright enough, to scatter the roaches.

I noticed you signed your last post "John" - what a coincidence. That adds to the confusion even more. But, please, no need for an explanation. This has been interesting.

John (as in Luv2bSecure)

 

Signed it John since that is my name.

The basis of Epic response to the IIT review fall along these lines...

The Draft Report states that Carnivore is, indeed, capable of collecting more information than law enforcement is legally authorized to acquire:

While the system was designed to, and can, perform fine-tuned searches, it is also capable of broad sweeps. Incorrectly configured, Carnivore can record any traffic it monitors. Draft Report, Section ES.5.
While the reviewers apparently considered only the potential that the system could be "incorrectly configured," the ease with which Carnivore can mistakenly conduct a "broad sweep" suggests that it is clearly subject to intentional abuse as well. The unauthorized over-collection of private communications, whether accidental or intentional, raises fundamental issues under both federal wiretap law and the Fourth Amendment. We do not believe that this infirmity can be cured through any sort of technical "fix." Rather, it is an inherent flaw in any system that provides law enforcement with direct access to an ISP's data traffic.


I spend a lot of time here/ and physically at the building
I have probably file more FIOA's than Epic to date.
http://foia.fbi.gov/

These guys also know me by site.
http://www.usdoj.gov/04foia/04_3.html



I am going to be busy next week.
April 7-10, 2002
Myrtle Beach, South Carolina 4th Annual International Techno-Security Conference
http://www.thetrainingco.com/html/Conferences.html
http://www.techsec.com/




April 6-8, 2002
Myrtle Beach, South Carolina Internet Security Alliance's First International Conference
http://www.asisonline.org/upcoming.html
http://www.isalliance.org/


This is what I think of most things on the internet these days.
http://tlcwebdesign.hypermart.net/itmustbe.htm


But I have not checked out blazes basement yet.


"you left out the portions that made it a slam-dunk victory for Epic and a blow to the DOJ and Carnivore."


Not I John. It was not my site.



"5.  Though this thread has focused on you because of your rather odd original post, and confusing follow-ups, it has also served a purpose in hopefully getting members and visitors here interested in the ongoing EPIC suit against the FBI/DOJ."


I certainly hope so.


EPIC is a public interest research center in Washington, D.C. It
was established in 1994 to focus public attention on emerging
civil liberties issues and to protect privacy, the First
Amendment, and constitutional values. EPIC is a project of the
Fund for Constitutional Government. EPIC works in association
with Privacy International, an international human rights group
based in London, UK and is also a member of the Global Internet
Liberty Campaign, the Internet Free Expression Alliance and the
Internet Privacy Coalition.


Never asked John..do you live in the States.

Be Well, John

 

Somewhat overawed.  'Scuse me, need to re-evaluate my posts.

Done.

Okay, so I'll prolly still write crap.  But I'll feel better about it now.

 

You know, I'm going to leave this alone - right here.

I realize you are trying to sound friendly, but I also know it is in an effort to glaze over the confusion you brought about.

I will say this ONE more time:

If you KNEW the facts of the order of 3-25, then it wouldn't have mattered what site had poor information. Your attempt at explaining that:

is about as LAME as they come. How could you KNOW you were posting misinformation with the key victories of EPIC left out - and not mention it  Please.

Your last post shows you know how to cut 'n paste from www.epic.org - great. You list all of your busy schedule at security conferences (complete with dates and links) in an effort to rehabilitate yourself and make us think you are some big security wizard - great. Oh, and you spend a lot of time at the Hoover building, the home of the FBI. Great.  

I am sure you meant the DOJ knows you by "sight" not by "site"......and, by the way, you said you have probably filed more "FIOA" requests than EPIC to date? I highly doubt that. If you had, you would surely have typed that acronym more than a few times and know that it is a FOIA request, not a "FIOA"...........

Give it up, "John".....

John (as in Luv2Bsecure)

 

No,  site is the correct word.

I do not need  your redemption John.

You said it all in your first two...
What a load of $%#@$ !!!!!!!!!
You managed to REALLY &%$$ me off!!

 

I agree, with full apologies. I got too carried away in that last post. I hate it when I read threads that disintegrate into that, and here I did just what I can't stand. There are some things that you feel you just have to say but know you shouldn't. Yet sometimes the keyboard just begins to type away on its own.  
Sorry to all.

John

 

First off, I am not flaming or anything nasty like that. I have followed this thread with interest and have learned a lot of things that I knew nothing about before, and are worthwhile to say the least.
However, as an American who is rather proficient with the English language, I must point out that Luv2b is correct... A person knows you by "sight". A physical place or location is a "site".

 

These guys also know me by site.
http://www.usdoj.gov/04foia/04_3.html



The reason they "know me by site"...they have used it for years to register for conferences...like the one that begins monday. Believe it or not the DOJ people are humanbeings just like yourself with families and not all spies...some of them have taken their familes with them. But as Pete can tell you the weather is not going to be that great for them this next week. Spy1 was invited, as were many others, to this conference many many months ago..I even offered to some free registration. One took me up on it and will be staying in one of my spare bedrooms. He is from New Jersey.


John, I asked if you lived in the states. You never answered. Other conferences are coming up..they are about security and privacy. You are not my enemy.

The FOIA's  that I do are for familes of Vietnam Vets. Did not bring that into the picture since it has nothing to do with this thread or forum. I file many others.

I posted the....

You said it all in your first two...
What a load of $%#@$ !!!!!!!!!  
You managed to REALLY &%$$ me off!!

Not to throw it back at you..but rather to let you know there was not much I could do for you based upon your last post. But you still wanted to do something for me..

You wanted me to know that there was "me" and as you presented yourself constanly as "we". You have done everything possible, right down to spelling.

That was done here to another member who is now band from posting. That is sad.. for his passions run akin to yours...seeking the truth.

I do alot of cut and paste. Epic and I have many common goals. Their transitions since 1994 has expanded to be of interest to many more people.


But it still remains...
".....to focus public attention on emerging
civil liberties issues and to protect privacy, the First
Amendment, and constitutional values. "


We never got a chance to discuss this in a "open" forum....

"The Draft Report states that Carnivore is, indeed, capable of collecting more information than law enforcement is legally authorized to acquire:

While the system was designed to, and can, perform fine-tuned searches, it is also capable of broad sweeps. Incorrectly configured, Carnivore can record any traffic it monitors. Draft Report, Section ES.5.
While the reviewers apparently considered only the potential that the system could be "incorrectly configured," the ease with which Carnivore can mistakenly conduct a "broad sweep" suggests that it is clearly subject to intentional abuse as well. The unauthorized over-collection of private communications, whether accidental or intentional, raises fundamental issues under both federal wiretap law and the Fourth Amendment. We do not believe that this infirmity can be cured through any sort of technical "fix." Rather, it is an inherent flaw in any system that provides law enforcement with direct access to an ISP's data traffic."


It will be discussed "here" this next week..."we' do not intend to cancel anyone's registration.

 

Paul, the post you are referring to is a forgery.  As a professional writer, I can absolutely assure you of that.
I strongly recommend that the real "Response" registers.

Paul, I further suggest, after strong analysis, that prohibition of domains does not work.  Yes, to use movie parlance, He's Ba-a-a-ack...

 

All I'd like to add is that, yes, Response, I wish you would actually register.

I'm not seeing anything 'hinky' about your posts (after the first one, anyway) and it would be to your benefit to register to stop any confusion.

Thanks for the additional info. Pete

 

Good eye, Checkout. Did you notice a marked difference in style? Anyway, I fully agree with the registration idea. It's too easy as it is now, for anyone else to post under his, or anyone else's username.

Before we are back to the subject, the "hinky" stuff was clear as a bell to me. In my neck of the woods, when trying to recover from something that would be better left well enough alone, we call it, "digging a deeper hole for yourself." That's what I found frustrating. Nothing added up. 2+2 should equal 4. Either he was on the "inside" and knew all of this, or he was not on the "inside" (which was clear), tried to recover, and fell even deeper into question. I saw, with each post, confusion and subterfuge. This is not a flame, but merely responding to the last post (if it WAS "Response") and to Pete (who didn't see anything "hinky" after the first post) as to why it truly was important to determine credibility so the thread could be read with some sense of common trust that what was being posted was solid, valid information. I abhor the slams against spelling. I am against that completely. I thought pointing that out was in context under the claims and circumstances. OK, enough.

Yes, I live in the United States.

Oh, Pete, I loved the word "hinky" by the way. Good 'ole CarolinaSpeak  

I have received several inquiries concerning Carnivore and asking just what the problems are. "Response" said it will be discussed "here" next week and I'm not sure what he was referring to. Because, actually, this is OLD information. The real issue in the first place was simply the EPIC victory against the Department of Justice back on March 25th. But, it would do us all well to remember why the court fight is being waged.

I think the best source for that information can be found in a letter from Dave Sobel, the EPIC lead counsel, to the DOJ back in late 2000. It not only gives the problems with Carnivore, but the problems with the IIT "independent" review of Carnivore. You can find that at  http://www.epic.org/privacy/carnivore/review_comments.html  

There is no question that Carnivore, and now it's sister program dubbed "Magic Lantern," have the potential for widespread abuse. In the wake of 9-11, I think it is even more important that we be vigilant and guard against abuse by the powers-that-be. Much can now be done to you, to me, to anyone all under the guise of "fighting terrorism."

John

 

If anything, too easy.

edit: off topic remark removed - Forum Admin.