By Dan Eggen and David A. Vise
Washington Post Staff Writers
Saturday, November 18, 2000; Page A03

Tests show that the FBI's controversial Internet wiretap program, dubbed Carnivore, can retrieve all communications passing through an Internet provider, not just those connected to a criminal suspect, according to an FBI memorandum released this week.

The tests, conducted in April and May, found that the program "could reliably capture and archive all unfiltered traffic to the internal hard drive" of an FBI computer, according to the memo.

FBI officials said yesterday that the tests were conducted only to determine the breaking point of the software, and they reiterated their pledge to restrict snooping within legal limits.

But several prominent privacy advocates said the tests show the FBI has been misleading the public about Carnivore's capabilities and raise new concerns about potential abuses by government agents.

"This has been a constantly moving goal post," said Wayne Madsen, senior fellow at the Electronic Privacy Information Center, which obtained the memo as part of a Freedom of Information Act lawsuit. "They keep saying it only does one thing, and we keep finding out that it can do much more. . . . You have to wonder why they're testing for something they say they're not going to do."

Carnivore is under fire from members of Congress, who have called for its suspension, and from privacy groups and Internet providers worried it will be used to track innocent people's e-mail and Internet use.

A report on the program is due to be released next week by Attorney General Janet Reno, who convened a panel of experts to review Carnivore. But the report is unlikely to calm the storm, because critics complain the panel is tilted toward law enforcement.

Marcus Thomas, head of the FBI cybertechnology section, said the tests were "good engineering practices" to measure how much data Carnivore could handle.

"Certainly there are modes in which it could be operated that would be illegal, but there are checks and balances in place to make sure we don't do that," Thomas said. "I don't think we've ever meant to mislead people. . . . There's no indication that we would actually operate it in unfiltered mode."

Spokeswoman Jill Stillman said the tests were conducted only on internal FBI computers and did not involve public Internet providers.

In testimony before the Senate Judiciary Committee in September, FBI Assistant Director Donald M. Kerr told lawmakers, "Carnivore is not positioned to filter or access, in Big Brother mode, all subscriber traffic throughout an ISP provider."

But James X. Dempsey, senior staff counsel at the Center for Democracy and Technology, said the tests show the FBI could easily do just that. "These documents reinforce the argument that there needs to be a system of checks and balances here, so there is someone other than the FBI controlling this," he said.