Keystroke Logging and the Constitution

Here is something new for constitution lawyers to ponder: How would you apply constitutional law to the hacking technique known as "keystroke logging?"

According to an article by CNET.com's Declan McCullagh, a federal agent with the Drug Enforcement Administration convinced a federal judge to legally authorize the installation of keystroke logging software into the computer of a suspected ecstasy drug manufacturer. Key logging software is used to capture a computer user's keystrokes, and it is often used to spy on people's computer usage and to capture usernames and passwords. According to the article:

That was necessary, according to DEA Agent Greg Coffey, because the suspects were using PGP and the encrypted Web e-mail service Hushmail.com. Coffey asserted that the DEA needed "real-time and meaningful access" to "monitor the keystrokes" for PGP and Hushmail passphrases.

The aggressive surveillance techniques employed by the DEA were part of a case that resulted in a ruling on Friday by the 9th Circuit Court of Appeals, which primarily dealt with Internet surveillance through a wiretap conducted on a PacBell (now AT&T) business DSL line used by the defendants. More on that below.

The DEA's pursuit of alleged Ecstasy manufacturers Mark Forrester and Dennis Alba differs from the first known police use of key-logging software, which snared reputed mobster Nicodemo Scarfo in 1999. In the Scarfo case, the FBI said in an unclassified affidavit at the time, a key logger that also was planted in a black bag job was disabled when the Internet connection became active.

Since the DEA agent did not use the key logging software when the modem was in use, they were able to avoid the question of whether the technique is unconstitutional and permitted under wiretap laws.

The defendants in this case argued that key logging software is the same thing as a "general warrant" or a "writ of assistance" that would allow police to take "any record, including e-mail, simply because it was typed on a computer." The Fourth Amendment of the Constitution prohibits general warrants and requires warrants to identify the "things to be seized." Wiretap laws require that the interception of non-applicable information, such as conversations, be kept to a minimum.