[iwar] [fc:FBI.May.Use.Keystroke-Recording.Device.Without.Wiretap.Order]

From: Fred Cohen (fc@all.net)
Date: 2002-01-04 18:41:21
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From: Fred Cohen <fc@all.net>
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Date: Fri, 4 Jan 2002 18:41:21 -0800 (PST)
Subject: [iwar] [fc: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.

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