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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. |
