Holly E. Ventura, J. Mitchell Miller and Mathieu Deflem, University of South Carolina

in: Critical Criminology (2005) 13: 55?70

(Abstract and Introduction only)
Abstract. Social control capabilities have increased significantly over the past several decades, particularly because of an increased utilization of technologically advanced surveillance methods. Following the tragic events of September 11,2001, U.S. Congress and the present Administration have granted law enforcement considerable new powers in the enforcement and prevention of terrorism-related crime. Collectively labeled under the heading of the so-called “?war on terror”? , the scope of such laws, policies and directives are challenged by civil rights organizations and numerous legislators for lack of definitional precision, arbitrary application of sanctions, and violation of privacy laws. One of federal law enforcement’s surveillance tools is ?”Project Carnivore,”? a Justice Department Internet surveillance program that is administered by the Federal Bureau of Investigation (FBI) to access information flowing to and from a central processing unit on a network connection. While, theoretically relying on Michel Foucault’s theory of discipline and governmentality, as well as related insights in the social control literature, this paper examines Project Carnivore relative to the larger context of state rationality and related privacy issues.

Far more than a mere formulaic catch-phrase, the war on terror consists of an extensive number of laws, policies, and directives aimed at preventing additional attacks on, primarily, American targets. Legislation and executive directives alike carry significant implications for the function of law enforcement, particularly with respect to privacy issues. Several initiatives included under the broad umbrella of the terror war teeter dangerously on the fringes of constitutionality, theoretically presenting a legal and ethical quagmire for the government. A primary example is the USA Patriot Act, legislation passed by Congress six weeks after the September 11th attacks, which broadened government’s surveillance powers in several areas including records searches and intelligence searches. In this paper, we focus on one specific initiative, a new technology developed for the Federal Bureau of Investigation (FBI), termed ?”Project Carnivore.”? Despite selective implementation prior to September 11, it is particularly since that fateful day in our nation’s history that Project Carnivore may have great implications for the nation’s latest national security endeavor as well as with respect to the rights of individuals who have access to targeted Internet Service Providers.

Perhaps the most intrusive web-based technology ever developed, Carnivore possesses the ability to essentially wiretap individuals? computers, accessing every piece of datum flowing to and from a Central Processing Unit (CPU), provided the data were moved on a network connection. But Carnivore opens up a privacy “can of worms,” as the technology far out-paces present laws aimed at the protection of individual liberty and privacy. And, indeed, the surveillance project has already been examined on a number of grounds, including possible Fourth and First Amendment abuses and violation of the Electronic Communications Privacy Act (ECPA) of 1986. Yet, although several groups have expressed a desire to challenge the project’s constitutionality, the ECPA at present remains the sole source of judicial action concerning Carnivore (American Civil Liberties Union (ACLU) 2002, 2003; Gooldstein and Orr 2003; StopCarnivoreNow 2003).

The Electronic Privacy Information Center (EPIC) filed a complaint against the U.S. Department of Justice and the FBI in Federal District Court (Civil Action No. 00-1849 JR) in 2000 for failure to comply with the Freedom of Information Act (FOIA). Despite numerous requests, the Bureau initially refused to provide the EPIC (a non-profit organization aimed at the educational dissemination of privacy-related policies) with documents related to the nature and utilization of the Carnivore software based on a national security argument. Upon further demands from the EPIC, the FBI then released 1957 pages of material, but some pages were edited, visually obstructed, or missing. The EPIC continued its quest for Carnivore-related documents and a federal district judge in Washington, D.C. ordered the FBI to identify the location of all possible material related to the Carnivore software system. The Bureau now asserts that all documents related to the software have been made available in compliance with the FOIA. The FBI?s initial claim of national security protection coupled with its subsequent refusal to produce documents in their totality exemplifies the difficulty with which the legal community is faced in understanding and assessing the nature and scope of the Carnivore program. Moreover, the judicial climate today is such that executive agencies are not held to a strict definition of national security, thus creating the problem of lessened accountability in terms of FOIA compliance.

Research on social control has focused on the escalation and intensification of surveillance monitoring from social’scientific (Cohen 1985; Marx 1988), cultural (Marx 1997, 2002), historical-comparative (Deflem 1997; Foucault 1977), and ethical (Foucault 1980; Lerner 2003; Marx 1998) viewpoints. The nature of Carnivore’s sweeping capabilities hastens questions of government intention and specification of latent and manifest functions of the program. In this paper, we will examine the legality and ethicality of Project Carnivore in the broader context of a Foucauldian perspective of governmentality and state rationality (Foucault 1980, 1991). Before addressing the implications and possible consequences of an unbridled use of Carnivore, we briefly describe the Project and its technical components.

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