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http://www.usatoday.com/life/cyber/tech/2001/12/27/fbi-snooping.htm

NEWARK, N.J. (Reuters)  A defense attorney for reputed mobster
Nicodemo Scarfo Jr Thursday promised an appeal of a federal judge's
ruling that the FBI properly spied on Scarfo's computer system. The
ruling the first of its kind in a federal district court capped six
months of controversy that weighed computer privacy rights against law
enforcement's right to use secret computer technology in criminal
probes.

"Of course the matter takes on added importance in light of recent
events and potential national security implications," wrote U.S.
District Judge Nicholas Politan in a 25-page decision handed down late
Wednesday.

Acting under a court-ordered search warrant in 1999, FBI agents
installed a so-called key logger device in Scarfo's computer to crack
into encrypted files.

Evidence they gathered led to the indictments of Scarfo and a
codefendant in June 2000 on gambling and loan-sharking charges.

Defense attorneys said the case might have been a "run of the mill
bookmaking case" except for the surveillance issue. They requested
full disclosure of the government's operation, claiming Scarfo
otherwise would not get a fair trial.

Specifically, the attorneys wanted to ensure that e-mail messages were
not gathered by modem and phone lines, possibly constituting an
illegal wiretap.

In his ruling, Politan said the government convinced him at a Sept. 26
closed meeting that no information was picked up while a modem was on.

Prosecutors were justified in invoking the Classified Information
Privacy Act to protect national security at stake in the case, he
said.

Vincent Scoca, Scarfo's attorney, said he will file to have the ruling
reconsidered, a first step toward higher appeals.

"This a is a bad precedent for our judicial system. This was a two-bit
bookmaking operation. There was nothing extraordinary about this case
that warranted them using the Classified Information Privacy Act," he
said. "That's a police state and we don't want a police state. Even in
these times, after Sept. 11, people still don't (want) unwarranted
government intrusion."

Scoca was not allowed to attend the September meeting.

Assistant U.S. Attorney Ronald Wigler said the judge's access to
classified information at the meeting was "a safeguard to prevent the
government from overreaching, as the defense alleges. That's why there
are these checks and balances."

Scarfo's trial including evidence gathered from the FBI surveillance
is likely get under way in the spring, Wigler said.

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