FBI Wants to Keep Digital Snooping Secret

Federal prosecutors want to keep their keystroke-tracking methods secret, claiming the PC bugging tactic is protected under Classified Information Protection Act.

The issue has risen in the criminal trial of an accused Mafia loan shark, but privacy advocates say the precedent could set standards for PC "wiretapping."

U.S. District Court Judge Nicholas H. Politan has granted the government's motion to keep secret--for now--the technical details of a computer keystroke logging tool. The judge will privately review a detailed description of the device, without revealing it to the defense. He will consider the government's claim that national security would be at risk if the method's details become public. If Politan decides the government's national security claim is valid, then the defense--and the public--will see only a limited description of the key logger system's inner workings.

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 on his PC. In an earlier raid on the office, FBI computer experts found one encrypted file they 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," says James Dempsey, deputy director for the Center for Democracy and Technology, an advocacy group. "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."

Racketeering Charged

The U.S. Department of Justice, 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, because tracking a user's surfing requires a warrant equivalent to one for a wiretap. The defense has argued that it cannot determine if the technology violates the warrant, because the government won't reveal information about the program.

Prosecutors contend 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.

High-Tech Snooping

The Scarfo case raises new issues for privacy, but not all have to do with emerging technology, Dempsey says.

"The troubling thing is the lack of notice," he says. "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. Another prominent electronic-surveillance issue involves Carnivore, now renamed the more public relations-friendly DCS1000 surveillance system.

Carnivore allows law enforcement agents to intercept e-mail, ostensibly sifting through public electronic transmissions to get to the target's correspondence. The system raises privacy concerns because it isn't clear if Carnivore prevents agents from capturing e-mail beyond the target of a warrant.