- 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.
-
- 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 <http://www.pgpi.com/ 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 enforcement'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 attorney 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 powers 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
<news/conflict/0,2100,48648,00.htmlleaked
about an FBI project code-named "Magic Lantern" 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 authorization 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 computer 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 search 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 government 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.
-
- http://www.wired.com
|
