FBI's key logger under scrutiny

Law enforcement's penchant for high-tech surveillance has again collided with 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.

A federal judge ruled Aug. 7 that the FBI must explain to him how a monitoring device called a "key logger system" works. Depending on how the device collects data, its use may have been illegal.

The key logger was used against Nicodemo Scarfo Jr., who is accused of running loan shark and gambling operations in New Jersey. Scarfo is the son of a jailed organized crime boss.

Like a growing number of computer users, Scarfo encrypted some of the information he stored on his computer. 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. By studying the keystrokes, the FBI deduced Scarfo's password and decode some of his files. Prosecutors say they discovered a cache of gambling and illegal loan records.

But Scarfo's lawyers have pressed a federal court judge to throw out the records, contending they were collected illegally. The FBI had a search warrant, which permitted them to seize specific, limited evidence. But to plant a device able to make sweeping electronic interceptions, such as keyboard keystrokes, the lawyers argue, the FBI needed a wiretap order, which is much harder to obtain than a search warrant.

The FBI insisted the keystroke data was collected legally, but agents steadfastly refused to disclose how the key logger system works.

In documents filed with the U.S. District Court in Newark, N.J., where the case is being tried, the U.S. Justice Department said disclosing how the key logger works would undermine ongoing investigations, including probes of foreign intelligence agents, and could endanger the lives of U.S. agents.

Revealing how the system works also would help criminals and hostile intelligence agents develop methods to foil the key logger, the Justice Department said.

But U.S. District Court Judge Nicholas Politan overruled the arguments and ordered the FBI to tell him by Aug. 31 how the key logger works. In deference to Justice 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, Politan wrote. That might make using the key logger comparable to tapping a telephone call or intercepting other electronic communication, which would require a wiretap order.

The key logger case joins a growing number of cases that raise questions about the government's use of electronic surveillance and the public's right to privacy.

Last year the FBI touched off a furor with its use of e-mail monitoring technology known as Carnivore. Police in Tampa, Fla. sparked a similar outcry when they used surveillance cameras and facial recognition software to compare the faces of tens of thousands of football fans at January's Super Bowl against a database of sex offenders and other criminals.

Privacy advocates denounced Carnivore and the facial recognition systems as causing mass invasions of privacy.

Red-light cameras are targets for similar criticism. Although supporters say they are effective at improving safety, critics say they are the first step toward a system that will be able to track cars and the whereabouts of drivers.