FBI May Use Keystroke-Recording Device Without Wiretap Order

Law.com ^ | January 3, 2002 | Mary P. Gallagher

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FBI May Use Keystroke-Recording Device Without Wiretap Order

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FBI May Use Keystroke-Recording Device Without Wiretap Order Government doesn't have to explain technology's specifics Mary P. Gallagher New Jersey Law Journal January 3, 2002
In a case of first impression, a federal judge ruled Dec. 26 that the Federal Bureau of Investigation did not need a wiretap order to attach a keystroke-recording device to a reputed mobster's computer in order to learn the password to an encrypted file. U.S. District Judge Nicholas Politan in Newark, N.J., also allowed prosecutors to keep secret the specifics of the technology, saying disclosure "would cause identifiable damage to the national security of the United States." Politan denied a motion by lawyers for Nicodemo Scarfo Jr., who was indicted on gambling and loan-sharking charges in June 2000, to suppress the gambling file obtained from his computer. The lawyers argued that the "key-logger system" violated the Fourth Amendment, by collecting more information than needed, and the federal wiretap statute, 18 U.S.C. 2510, by picking up modem transmissions without a wiretap order. Scarfo lawyers Norris Gelman and Vincent Scoca argued that they needed a detailed explanation of the logger technology to determine whether its use was improper. If the logger accessed wire transmissions, the FBI would have needed a wiretap order rather than the search warrants used, they argued. Politan originally seemed receptive. In an Aug. 7 letter opinion, he expressed concern that the FBI might have violated the wiretap statute if the logger picked up keystrokes while the computer modem was operating. He ordered the government to fully explain the device's workings. But prosecutors invoked the 1980 Classified Information Procedures Act, which establishes procedures for handling classified information in criminal cases. They contended that disclosure of the system's specifics would jeopardize ongoing and future criminal investigations and undermine national security. Politan held an in camera hearing on Sept. 26 to review what the opinion described as "top-secret, classified information" about how the logger operates in connection with a modem and how it affects national security. Only those with top-secret security clearance were allowed to attend. On Oct. 2, Politan issued a protective order, finding the classified-information act applied. He sealed the transcript of the Sept. 26 hearing but ordered the government to provide Scarfo's lawyers with an unclassified summary of the logger system, which he said gave them enough information to argue their suppression motion. Politan's opinion last week explains the reasons for his Oct. 2 ruling. "The Congress has spoken through CIPA and determined that certain classified pieces of information implicate national security concerns to such a degree that disclosure ... would seriously compromise United States' national security interests," he wrote. "CIPA strikes a balance between national security interests and a criminal defendant's right to discovery by allowing for a summary which meets the defendant's discovery needs." In rejecting Scarfo's argument that denial of more detailed information about the logger would cripple his defense, Politan wrote that the government's duty to disclose is not absolute and that CIPA creates an exception to that obligation. Politan also ruled that no special wiretap order was needed because the logger intercepted no telephonic communications. He based that finding on FBI evidence that it configured the logger so it would only record keystrokes when the modem was not transmitting. He also spurned the defense lawyers' contention that the warrants were, in effect, impermissible general warrants because they collected more data than necessary to crack the password code. Scoca, a Bloomfield solo practitioner, is troubled by the Sept. 26 closed-door hearing and by the fact that his expert witness was never heard. David Farber, a professor of telecommunications at the University of Pennsylvania, would have testified that it was unclear whether the key logger can distinguish between online and offline work, Scoca says. Scoca calls it "overkill" for the FBI to use a classified device like the logger in a "run-of-the-mill bookmaking case," like the one against Scarfo, when there are commercially available alternatives that could have broken the password. "If the government's device doesn't encroach on our rights, there is no reason to keep that from the defense," he comments. Gelman, a Philadelphia solo practitioner, thinks the Sept. 11 terrorist attacks influenced Politan's receptiveness to the government's arguments. He points to Politan's referring to the key logger issue as being of "added importance in light of recent events and potential national security implications." "I hope this is not the dawning of a new age where hearings will be conducted in secret," says Gelman. Scoca adds: "Everyone has a heightened awareness of national security as a result of Sept. 11. But we don't want to wake up six months from now and find our civil liberties gone." Scoca says the defense might move for reconsideration of Politan's ruling. Assistant U.S. Attorney Ronald Wigler, who represents the government, did not return a call seeking comment. West Orange, N.J., solo practitioner Richard Roberts, who represents Scarfo's business associate and co-defendant, Frank Paolercio, and who joined in Scarfo's motion, declined comment.

[Rain-maker]

[Cicero]

What they are talking about here is a mechanical device. The FBI sneaks into the house and attaches it to the back of your computer. That's quite different from internet hacking by the FBI, which I am quite confident will never work.

[isthisnickcool]

It sounds like some type of in-line device. Kinda like a dongle. Must be hard wired. Yawn!

[verboten]

That Forth Amendment was sure nice but this is 2002, such Rights are no longer allowed. They are outdated. They were for back when you didn't have crime that you needed to stop. Nope, in the 1700s everything was peaceful and it was safe enough for people to live free. Besides cops never abuse their authority. At least that we'll ever find out with GWB refusing to release details about such matters.

A policeman's job is only easy in a police state - TOUCH OF EVIL

[tbeatty]

The title is WAY misleading. They had a search warrant. Kind of like reporting that "Ford fails to install Muffler Bearings".

[DoughtyOne]

Judges are not only the people who make rulings on guilt or innocense, they are supposed to mitigate issues regarding the need for special law enforcement tactics vs the rights of our citizens. Here we have a supposed mob figure. In another case we may have a suspected terrorist. Does anyone really believe the FBI couldn't get a wire-tap order from a judge in these types of cases?

When the courts allow computer taps at the will of the FBI without proper oversight, they have essentially said, tap any line you want. And that's where normal citizens come in.

It is not constitutional for law enforcement to be able to listen in on every conversation at a whim. This opens the door to any federal agency to tap every single internet transmission. That is clearly a violation of personal rights.

The rule of thumb for me is this. Should the federal government be able to read all personal communications in the form of mail? If not, then why are all personal communications via wire treated differently. We have a right to private communications. Unless we are genuinely suspected of a serious crime, that premise should not be violated.

None of us want to hinder legitimate law enforcement. But giving carte blance to government agenceies to capture all our comments, filter them and develop profiles on 100% of our personal views is facsist. The mis-interpretation of such communications could lead good citizens to be profiled as "risks" simply because they discuss the merits of weighty issue.

I really do question this judge's ruling.

[William Tell]

If the technology is so sophisticated and essential to national security, then why is the government risking the exposure of this technology by using it in a matter which does not risk the security of the nation.

It appears that the government wants it both ways now. They want special powers which they justify with special arguments and then they want to use it routinely to violate people's right to due process. It is not "due process" to make a claim in court rather than provide evidence.

The judge is absolutely wrong.

[Atlas Sneezed]

The device isn't particularly secret.

http://www.keyghost.com/

Other versions simply clamp around the existing keyboard cord. Just slip into your boss' office in the morning to install it before he arrives, then collect it on his first coffee break. You can then learn his network passwords and get all the inside secrets before you go to work for the competition.

[David]

I assume an appellate court will overturn this decision. In my view, it makes no difference whether the device is hardware or software or anything else--the legal and constitutional principals are the same as those governing wiretap or any physical invasion of the defendant's domicile. They can't do this without a court order.

To the extent that the several online summaries of what the judge held are anywhere close to correct, this decision is simply wrong and it is far enough off that I believe one can be confident it will be reversed.

[go star go]

if you do a 32 bit crc check on every bit of object code that is loaded on your computer, compare it to previous crc(s) then you can sense when they install their virus. putting together a application to automate this process is relatively simple giving you a simple, foolproof method of defeating the virus.

[verboten]

We need to consider why we have wiretaps in the first place. There are two reasons to have one. The first is to monitor a person on the chance that they might discuss a crime they plan to commit. In this instance no crime has occured, and no crime might occur. The idea is that someone will be arrested for thinking about a crime. Because with a conspiracy to commit crime, if we are prevented from commiting the crime no one has been harmed. For quite some time our legal system has been broadening the definition of a conspiracy. A conspiracy (which none exist to create world government or anything like that right?) requires an overt act. That is merely talking about commiting a crime was not sufficient to prove a conspiracy. If for instance we were planning to rob a bank we would have to purchase ski masks in order to be in a conspiracy. Needless to say, the assertion that we need to be proactive in law enforcement has reduced the standard of overt to a very low level.

For a conspiracy, having an overt act would not require listening to a phone conversation, as the overt act is sufficient to prove the already known conspiracy. So had an overt act occurred a wiretap would be unneccesary. So what would be the purpose of the wiretap? To get information on what to look for in the future as the overt act to prove the conspiracy? That is if the conversation was about us going to pick up the ski masks this afternoon. Because if we had already purchased the ski masks then a search warrant could be issued to get them as proof of the overt act. We would not then need to listen to conversations as physical evidence already exists.

The second reason for a wiretap would be to get information about a crime that has been committed. The only purpose for a wiretap would be to get a confession, because if physical evidence exists a warrant could be issued to get that evidence. The problem with this wiretap is that it violates the rights of some other person who unknowingly is involved in a telephone conversation that is being monitored. So this wiretap violates one persons privacy to get a possible confession for a crime for which evidence of guilt could already exist.

So are wiretaps ever really justified? I don't know that they are. But in our country we have elevated the notion that we must prevent crime above our respect of Liberty. So, wiretaps makes sense as we must monitor the world for potential crimes. Our system of justice is set up with bias benefiting the guilty lest the innocent suffer. This is a respected and honorable idea of Western culture and one that we must be careful not to forget.

[DoughtyOne]

I would agree with you.

Let me add in a few further thoughts. Who do we target for wiretaps? We target people who we've been tipped off about. Or we target those we've stumbled across evidence about. I would assume that you would agree with me, that if any reason were found to suspect a violent crime, that you would find it reasonable to try to verify that information via the use of special measures. What neither of us is willing to opt for is the screening of all communications looking for that preliminary evidence of suspicion.

I want to live in a nation who's government looks at it's citizens as if they were innocent until proven guilty. Do not suggest that I live in a nation who's government looks at it's citizens as if they were guilty until proven innocent.

[AAABEST]

I really do question this judge's ruling.

"Question" is the understatement of the the day, you're way too reasonable for me. I question his sanity. I also question whether he ever read the f**king constitution. The part about "The right of the people to be SECURE in their persons, houses, papers, and effects ..."

[AAABEST]

LOL. That's good.

[tbeatty]

Read it again. They had a court order. The judge essentially ruled that the search warrant was specific enough for the device they used. These mobsters wanted this thrown out on a technicality that it should have been a wiretap instead of a search warrant. Judge said no.

[tbeatty]

They had a search warrant from a court. The judge ruled it covered the method they used to search ofr the password. Last time I checked, the Constitution specifically allowed search warrants.

[DoughtyOne]

I welcome your comments, but think we agree far more than you seem to realize.

[AAABEST]

They had a search warrant from a court. The judge ruled it covered the method they used to search ofr the password. Last time I checked, the Constitution specifically allowed search warrants.

Actually tbeatty you're right in the fact that they did have a warrant, wrong on the spirit of the 4th amendment.

and particularly describing the place to be searched, and the persons or things to be seized.

According to this judge's logic, before the computer was invented, an agency with a warrant for a particular document in a safe depsosit box would be able to secretly surveil a suspect, and without his knowledge confiscate and read every item of written correspondence (from mail to a dry cleaning ticket) in order to find out the combination to the box.

Not that I have any sympathy for Nick Scarfo, but the feds are aborting the 4th and using digital technology to perform limitless surveilence.

[AAABEST]

Heh. I wasn't disagreeing with you, I was expounding. You're just much more diplomatic and reasoned than I.

My hot air was directed at the judge, sorry if I singed your eyebrows.