FBI's PC Snooping Could Set Privacy Precedent

A federal court has ordered the U.S. Department of Justice to reveal technology that the Federal Bureau of Investigation used to track a suspect's computer keystrokes, in a case observers say could affect privacy rights in this era of technological surveillance.

In May 1999, FBI agents sneaked into the New Jersey office of Nicodemo S. Scarfo Jr., according to court records. They didn't tap his phone, but instead planted a device to record computer keyboard input and learn the password for an encrypted file, according to the records. The Department of Justice, working with the FBI, is charging Scarfo with racketeering, illegal gambling, and loan sharking as a member of what they call a Mafia crime family.

When agents raided the suspect's PC earlier, they identified a file they suspected contained records of gambling debts, which would support their loan sharking investigation. It was protected with an encryption program called PGP (Pretty Good Privacy), according to the records. The keystroke tracking device later installed revealed the password and the cracked file became key evidence in the government's case.

The court is questioning how the keystroke logging system works. The government says national security prevents it from disclosing its methods, but U.S. District Court Judge Nicholas H. Politan wants a better explanation. Politan calls the printout of the FBI's computer keystroke log "gobbledygook" and ordered the government on Tuesday to explain the technology it used within the next ten days.

Specs Are Secret

The case has broad implications in the escalating debate about technology and privacy in the United States.

The government contends that revealing the technology it used would endanger the lives of U.S. agents and hurt ongoing investigations. But a software designer says it's unlikely a keystroke logging program itself contains especially sensitive technology.

"It's not rocket science ... I sure hope our tax dollars didn't go to their top scientists to spend all their time developing a keystroke logger," says Richard Eaton, president of WinWhatWhere, which makes keystroke logging tools. "They said the methodology is the security issue ... it could be the way the data is transmitted out of the system."

Court records describe the key logger system as "software, firmware, and/or hardware." Lawyers on both sides are under a court order not to speak publicly about the case.

The warrant that the FBI obtained to secretly install the keystroke logging system specifically prohibited monitoring Scarfo's Internet traffic. Internet communications are legally similar to phone conversations, and require a warrant for a wire tap, which must meet a higher burden of justification.

How Accountable?

Politan's ruling may shape the boundaries for legal guidelines for surveillance technology. In particular, it could affect the government's use of new surveillance techniques like the FBI's e-mail monitoring system, formerly known as Carnivore.

"In some ways the law hasn't kept pace with the effect of intrusive technology," says David Sobel, general counsel for the Electronic Privacy Information Center, a nonprofit advocacy group in Washington, D.C. "In some cases, law enforcement is exploiting the gap between the development of new technology and its evaluation by the court."

The case troubles Sobel because the FBI wants to keep the technology secret.

"The government is making the case that it can install sophisticated technology on computers and make a national security claim," to keep it secret, he says. If it becomes a routinely accepted argument for avoiding disclosure, "it would radically alter our concept of due process and the rights of criminal defendants," Sobel says.