Orin S. Kerr Associate Professor George Washington University Law School [EMAIL PROTECTED] (202) 994-4775
INSTALLING A KEYLOGGER ON A PERSONAL COMPUTER DOES NOT VIOLATE THE WIRETAP ACT, DISTRICT COURT HOLDS On October 8, a district court judge in Los Angeles dismissed a wiretapping indictment involving the use of a keylogging device installed on a personal computer. The judge held that Congress had not prohibited the use of a key logger on a personal computer because a personal computer was not a computer system affecting interstate commerce. My sense is that the court's approach is wrong. The government has filed a motion for reconsideration, but that motion has not yet been decided. The case is United States v. Ropp, Cr. 04- 3000-GAF (C.D. Cal., Oct 8, 2004) (Feess, D.J.) (unpublished, or at least not yet on Westlaw). In this case, Larry Lee Ropp installed a device known as a "KeyKatcher" on the desktop computer of Susan Beck, who worked at an insurance company in Orange County, California. The KeyKatcher is a keylogging wiretapping device that intercepts all keystrokes passing by the point of interception. Ropp installed the device on the cable that connected Beck's keyboard to her computer's CPU, and the device picked up Beck's e-mails and other messages sent via her computer. The government indicted Ropp for violating the wiretapping statute, 18 U.S.C. 2511, on the ground that he had intercepted Beck's electronic communications. Specifically, the e-mails and other communications that Beck had sent had originated at her keyboard and then travelled from her computer across the net. According to the government's theory, these communications were the "electronic communications" Ropp intercepted. In a meandering opinion, Judge Feess rejected this approach and granted a motion to dismiss the indictment. The e-mails and other communications were not "electronic communications," Judge Feess held, and therefore the Wiretap Act had not been violated. According to 18 U.S.C. 2510(12), an electronic communication must be "transmitted in whole or in part by a . . . system that affects interstate or foreign commerce," Judge Fees noted. Judge Fees viewed this as requiring that the interception occur at the location of a "system that affects interstate or foreign commerce," and then had to decide whether the "system" here was only Beck's PC, or rather Beck's PC together with the network to which it was connected. The court held that the relevant "system" was Beck's PC, and that this personal computer, standing alone, was not a system that affected interstate commerce. Thus the court dismissed the indictment. (The opinion also had discussions of United States v. Scarfo and the now-withdrawn panel opinion in United States v. Councilman, but in the end did not seem to rely on them.) Judge Feess's opinion seems wrong to me. First, consider the text. The text of the statute does not require that the intercept occur on a system that affects interstate commerce. Rather, the text requires only that communications collected be a "transfer of signs [and] signals" that are "transmitted in whole or in part" over a system that affects interstate commerce. Surely that was the case here: Beck's signals originated at her keyboard, and were then sent across the Internet. While they may or may not have been intercepted on a system that affected interstate commerce -- depending on the somewhat metaphysical question of how you define a computer "system" in a network context (more on that below) -- the statute does not actually require that. Second, the implications of this opinion would seem to take lots and lots of conduct that Congress thought it was prohibiting outside of the Wiretap Act. For example, the definition of "electronic communications" used for e-mail and computers is relatively similar, at least in relevant part, to the definition of "wire communication" used for telephones. No court has ever held that the police could install a bugging device on a phone without violating the Wiretap Act simply by installing the device on the cord connecting the phone's handset to the base. Courts have traditionally looked at the origin point of the signal, not whether the device was installed on a machine that itself seemed to affect interstate commerce. What matters is that the device picks up the communications in the course of transmission, not whether the communications were collected at the phone or the switching station. Finally, Judge Feess's conclusion that a personal computer connected to the Net is not part of a system in a interstate commerce seems to cut across the grain of existing case law. A number of courts have suggested that any communication connected to the Internet is tantamount to being in interstate commerce. See, e.g., United States v. Carroll, 105 F.3d 750 (1st Cir. 1997). Judge Feess argued that Beck could have written her e-mails and the like on a stand-alone computer, and if that had happened, her communications would not be on a system affecting interstate commerce. But as I see it, that's just arguing by analogy by changing the relevant facts. The fact remains that Beck's computer was connected to the Internet, and that the device picked up communications in the course of transmission from the keyboard to their recipients. Orin S. Kerr Associate Professor George Washington University Law School [EMAIL PROTECTED] (202) 994-4775 You are a subscribed member of the infowarrior list. Visit www.infowarrior.org for list information or to unsubscribe. This message may be redistributed freely in its entirety. 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