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Judge OKs FBI Keyboard Sniffing
By Declan McCullagh
2:00 a.m. Jan. 4, 2002 PST
WASHINGTON -- The Justice Department can legally use a controversial
electronic surveillance technique in its prosecution of an alleged
mobster.
In the first case of its kind, a federal judge in Newark, New Jersey
has ruled that evidence surreptitiously gathered by the FBI about
Nicodemo S. Scarfo's reputed loan shark operation can be presented in
a trial later this year.
See also:
Terror Law Foes Mull Strategies
Governor Calls for 'Cyber Court'
House Endorses Snoop Bill
Scarfo: Feds Plead for Secrecy
Give Yourself Some Business News
U.S. District Judge Nicholas Politan said last week that it was perfectly acceptable
for FBI agents armed with a court order to sneak into Scarfo's office, plant a
keystroke sniffer in his PC and monitor its output.
Scarfo had been using Pretty Good Privacy (PGP) encryption software to encode
confidential business data -- and frustrate the government's attempts to monitor him.
Politan flatly rejected the defense argument that the FBI violated both wiretap law
and the Fourth Amendment, saying that the FBI's black bag jobs "suffer from no
constitutional infirmity."
"Each day, advanced computer technologies and the increased accessibility to the
Internet means criminal behavior is becoming more sophisticated and complex.... As a
result of this surge in so-called 'cyber crime,' law en
forcement's ability to vigorously pursue such rogues cannot be hindered where all
constitutional limitations are scrupulously observed," Politan said.
Scarfo's lawyer said he was "very disappointed" but he could see no way to appeal
Politan's decision before the trial takes place. "If we should be convicted, it'll
come up on appeal," said Norris Gelman, a Philadelphia a
ttorney representing Scarfo.
Privacy scholars who fear that Politan's ruling will dramatically expand the
government's ability to spy on Americans have closely watched the case. If Politan's
decision is upheld on appeal, it will grant police broad po
wers to circumvent privacy-protecting encryption products.
"The decision is disappointing, particularly in light of the fact that the full
details of the keystroke logger were not disclosed to the defense," said David Sobel,
general counsel for the Electronic Privacy Information
Center. "It's an important issue that is likely to form the basis of an appeal should
Scarfo be convicted."
For its part, the FBI seems to want to avoid the physical breaking-and-entering that's
required to implant a keystroke logger in a suspect's computer. Late last year, news
leaked about an FBI project code-named "Magic Lan
tern" that would install surveillance software remotely using well-known backdoors in
browsers, e-mail clients and operating systems.
Ronald Wigler, the assistant U.S. Attorney responsible for the case, said: "There has
not been another case of its kind to date that has utilized these methods in
conjunction with the way in which we obtained authorizatio
n to use these tools."
"(The court decision) doesn't necessarily surprise us because we've been saying all
along we never violated his Fourth Amendment rights. We've been saying all along we've
never captured any electronic communications that
would require us to seek a wiretap order," Wigler said.
The court order from the federal magistrate judge stated that the FBI could "install
and leave behind software, firmware, and/or hardware equipment, which will monitor the
inputted data entered on Nicodemo S. Scarfo's com
puter in the target location so that the FBI can capture the password necessary to
decrypt computer files by recording the key related information as they are entered."
Defense attorneys had said that the PGP pass-phrase snatching was akin to a telephone
wiretap and pointed out that the FBI never obtained a wiretap order. Scarfo's lawyers
also claimed the FBI was conducting a general sea
rch of the sort loathed by the colonists at the time of the American Revolution and
thereafter outlawed by the Fourth Amendment's prohibition of "unreasonable" searches.
Complicating the case is the government's unwillingness to release details on how the
keystroke-capturing system works. The government calls the key-logger "a sensitive law
enforcement" mechanism that's classified -- and
that its details, like the secret locations of bugs and surveillance devices, may be
kept from defendants.
Last fall, the Justice Department invoked the Classified Information Procedures Act
(CIPA), which allows prosecutors to brief the judge in a secret session from which
defense attorneys and the defendant are excluded. That
ex parte hearing took place on Sept. 26.
"Pursuant to CIPA's regulations, the United States presented the Court with detailed
and top- secret, classified information regarding the (keystroke logger), including
how it operates in connection with a modem. The gove
rnment also demonstrated to the Court how the (keystroke logger) affects national
security," Politan said in his decision.
Defense attorneys received only an "unclassified summary statement" with general
information about the key-logging system.
The Justice Department says that Scarfo's encrypted file, titled "Factors," contains
evidence of an illegal gambling and loansharking operation.
Because Politan is retiring soon, a new judge will take over the case and set a trial
date, which will likely take place this year.
Related Wired Links:
Terror Law Foes Mull Strategies
Nov. 3, 2001
Governor Calls for 'Cyber Court'
Oct. 18, 2001
House Endorses Snoop Bill
Oct. 13, 2001
Scarfo: Feds Plead for Secrecy
Aug. 27, 2001
Judge Wants Keyboard Logger Info
Aug. 8, 2001
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