August 27, 2001, 11:18 AM — Federal prosecutors of an accused Mafia loan shark invoked the Classified Information Protection Act in the U.S. District Court of New Jersey to keep secret the technical details of a computer keystroke logging tool.
U.S. District Court Judge Nicholas H. Politan granted the government's motion to privately review a detailed description of the device. This means the judge will review the technology of the key logger system without revealing it to the defense, while considering the government's claim that national security would be placed at risk if details became publicly known. If Politan decides the government's national security claim is valid, then the defense -- and the public -- will only see a limited description of the key logger system's inner workings.
U.S. Federal Bureau of Investigation (FBI) agents acting with a warrant surreptitiously broke into the office of Nicodemo S. Scarfo Jr.'s in May 1999 to plant a keystroke logging device onto his computer. In an earlier raid on the office, FBI computer experts found one file protected with encryption the agents could not break. The keystroke logger enabled agents to record the file's password as Scarfo typed.
"There's a lot about the technology used by the FBI that could be publicly discussed, and deserves to be publicly discussed," said James Dempsey, deputy director for the Center for Democracy and Technology, an advocacy group in Washington D.C. "This is a hugely important case, because the government says if it can't get what it wants by other means, it will break into your house and plant a device that records everything you type until it gets what it wants.
The U.S. Department of Justice (DOJ), working with the FBI, charged Scarfo with racketeering, illegal gambling and loan sharking as a member of what they call a Mafia crime family. Scarfo's father is jailed mob boss Nicodemo S. "Little Nicky" Scarfo Sr.
The warrant specifically required that the key logger device not be used to monitor Scarfo's Internet traffic; monitoring Internet content requires a warrant equivalent to one for a wiretap. Without details of the system's operation, the defense argued in its motion to suppress that it cannot determine if the technology violated the warrant. Prosecutors argue in their motion for secrecy that if details of the key logger system are made public, it will be useless in further investigations and will jeopardize current ones.
Lawyers on the case are under a gag order, and cannot comment to the media about the trial.
The government's request to hide the technology of the key logger system responds to an order issued by Politan earlier this month, requiring the prosecution to explain the system's workings. Politan called earlier details of its workings -- the printout of the FBI's computer keystroke log -- "gobbledygook." Invoking the Classified Information Procedure Act is typically associated with protecting military or espionage secrets, like those involved in the Wen Ho Lee nuclear secrets case or the trial of Central Intelligence Agency turncoat Robert Hanssen.
The Scarfo case raises new issues for privacy, but not all have to do with emerging technology, Dempsey said. "The troubling thing is the lack of notice," he said. "Here, they had a Fourth Amendment warrant ... but they didn't issue notice for the search. In the Scarfo case, and a growing number of cases, the government is claiming it can dispense with the notice requirement and can come into your house secretly, plant things, take pictures, copy things and leave without telling you. That is a huge attack on the Fourth Amendment."
The key logger system illustrates the increasing role of technology in government surveillance, and the increasing gap between the pace of the law and the advance of science. The most prominent electronic-surveillance case involved Carnivore -- now renamed the more public relations-friendly DCS1000 surveillance system. Carnivore allowed law enforcement agents to intercept e-mail, ostensibly sifting through public electronic transmissions to get to the target's correspondence. The system raised privacy concerns because it wasn't clear if Carnivore prevented agents from capturing e-mail beyond the target of a warrant.
Another more recent example of technological surveillance in Tampa, Florida drew criticism from civil libertarians. Police installed a facial recognition camera system in a pedestrian traffic area. The cameras can scan faces and match them almost instantly to a database of known criminals and fugitives, with an 80 percent accuracy rate.
The FBI, in Washington, D.C., can be reached at +1-202-324-3000 or at http://www.fbi.gov/. Court documentation regarding the Scarfo case is available at http://www.epic.org/.
