FBI's key logger draws scrutiny

A federal judge ruled Aug. 7 that the FBI must explain how a monitoring device called a key logger system works—a case that again brings into focus law enforcement's penchant for high-tech surveillance vs. the public's right to privacy.

This time, the question is whether FBI agents can plant a secret monitoring device that records everything typed on a computer user's keyboard. The key logger was used against Nicodemo Scarfo Jr., who was accused of running loan shark and gambling operations in New Jersey.

FBI agents raided Scarfo's business in 1999 and copied data from his computer hard drive, but discovered they could not read the seized data because it was encoded.

Unable to break the code, agents secretly planted a key logger on or in Scarfo's computer to record every keystroke. The FBI deduced Scarfo's password and decoded some of his files. Prosecutors say they discovered gambling and illegal loan records.

Scarfo's lawyers have pressed U.S. District Court Judge Nicholas Politan to throw out the records, contending they were collected illegally. The FBI argues otherwise, but investigators refuse to disclose how the key logger system works.

Politan has ordered the FBI to tell him by Aug. 31 how the key logger works. In deference to Justice Department security concerns, Politan said the explanation may be delivered to him in a sealed report.

"This court harbors serious concerns" that the key logger may work in conjunction with a modem, the judge wrote. That might make using the key logger comparable to tapping a telephone call, which would require a wiretap order.