SPYING ON THE MOB: UNITED STA TES V. SCARFO

SPYING ON THE MOB: UNITED STA TES V. SCARFO - A
CONSTITUTIONAL ANALYSIS
Nathan E. Carrell
In this day and age, crime and technology have become entwined
concepts. Criminals have been using technology to avoid detection,
literally cloaking their business dealings through cryptography. In order
to compensate for these technological advances, law enforcement has
upped its own technological applications. From theuse of infrared
photography and DNA testing, to the advent of the Keystroke Logging
System, which decipers encryted data, law enforcement has taken a
proactice step towards catching tech savvy criminals. More advanced
technologies have begun to spring up that have less gliches. These new
technologies, particularly the Keystroke Logging System, have implicated
several constitutionalconcerns. This note discusses the applicationof the
Fourth Amendment "search and seizure" clause to these new technologies,
focusing on the competing privacy interests and law enforcement interests.
It then proceeds to recommend judicial and legislative solutions that will
better balance these interests.
Subtler and more far-reaching means of invading privacy have
become available to the Government. Discovery and invention have made
it possiblefor the Government, by means far more effective than stretching
upon the rack, to obtain disclosure in court of what is whispered in the
closet. ...
The progress of science in furnishing the Government with
means of espionage is not likely to stop with wiretapping. Ways may some
day be developed by which the government, without removing papers
from secret drawers, can reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate occurrences of the home.
I. INTRODUCTION
As the use of technology in society rapidly advances, the practice of
criminals who seek to use this technology to avoid detection and arrest
increases exponentially. Organized crime groups and drug traffickers
utilize computers and the Internet to their advantage 2 while seeking to
cloak their communications using strong cryptography which makes
1. Olmstead v. United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J., dissenting).
2. FBI Programs and Initiatives - Carnivore Diagnostic Tool, at http://www.fbi.gov/hq/
lab/carnivore/carnivore2.htm (last visited Feb. 10, 2002) [hereinafter Carnivore].
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[Vol. 2002
them undecipherable.3 Cryptographic software is easily accessible, and
criminals can utilize it in a variety of ways.4 Law enforcement, on the
other hand, has not stood idle to these developments.
Technological advances, including infrared photography and DNA
testing, have provided law enforcement officials with new devices to
assist in the detection of criminal activity.5 The Federal Bureau of
Investigation (FBI) has also evolved by expanding its arsenal of tools to
thwart criminal use of the Internet and cryptography. The FBI has
developed Carnivore - a tool to intercept e-mail and other electronic
communications passing through a data point at an Internet Service
Provider (ISP).6 Another tool in the FBI's repertoire is the Keystroke
Logger System (KLS) which monitors and records keystrokes entered
into a computer.7 This allows the FBI to access passwords entered via
keystrokes which are required for deciphering encrypted data. The FBI
is currently working on a software version of the KLS. This new
software, known as Magic Lantern, can be inserted into a suspect's
machine through a computer virus or a common network vulnerability.8
New technology in law enforcement results in new challenges for the
courts, not only in determining reliability of the evidence gathered, but
also in balancing society's interest in law and order with an individual's
constitutionally protected civil liberties.9 In a case of first impression, a
federal judge denied a motion to suppress evidence obtained utilizing the
KLS. l° The court found that a special warrant pursuant to Title III" is
not needed for the KLS because the method used to obtain evidence is
not regulated under the statute. 2 The court also rejected an argument
3. Statement for the Record of Donald M. Kerr, Assistant Director Laboratory Division
Federal Bureau of Investigation on Internet and Data Interception Capabilities Developed by the
FBI, Before the United States House of Representatives, The Committee on the Judiciary,
Subcommittee
on
the
Constitution
$
1
(July
24,
2000),
available
at
http://www.fbi.gov/congress/congress00/kerr072400.htm (July 24, 2000) [hereinafter Kerr House
Statement].
4. Overview of PGP, at http://www.pgpi.org/doc/overview/ (last visited Feb. 10, 2002). Pretty
Good Privacy (PGP) is free for download at http://www.pgpi.org. Id. PGP is used primarily for
encryption of e-mails, however it can be used to encrypt disk partitions and secure phone calls. Id.
5.
John E. Theuman, J.D., Annotation, Constitutionality Of Secret Video Surveillance, 91
A.L.R.5th 585, § 2 (2001).
6. Manton M. Grier, Jr., The Software Formerly Known As "Carnivore": When Does E-Mail
Surveillance Encroach Upon A Reasonable Expectation of Privacy?, 52 S.C. L. REV. 875, 875 (2001).
7. Jane Black, Needed: Wiretap Laws for a Wired World, BUSINESSWEEK ONLINE (Aug. 23,
2001), availableat http://www.businessweek.com/bwdaily/dnflash/aug200l/nf20010823-686.htm.
Sullivan, FBI Software Cracks Encryption Wall (Nov. 20, 2001), at
8. Bob
http://www.msnbc.com/news/660096.asp#BODY.
9.
10.
11.
Theuman, supra note 5, § 2.
United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001).
Title III is the common term for wiretapping statutes located at 18 U.S.C. §§ 2510-22.:
WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 4.2(a) (3d ed. 2000).
12.
Scarfo, 180 F. Supp. 2d at 581.
SPYING ON THE MOB
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13
that using the KLS constituted a general search
in violation of the
4
requirement.
Fourth Amendment's particularity
This note begins with a short discussion concerning criminal use of
technology in modern society and the constabulary's response in
developing tools to combat this high-tech criminal activity. I then offer a
brief discussion of Fourth Amendment law implicated by use of the KLS
in law enforcement, including traditional search warrants, Title III, and
non-audio video surveillance.
In the analysis section, I discuss
constitutional and other legal implications associated with the application
of the KLS to gather evidence in light of previous legislative and judicial
decisions. Finally, I propose possible judicial and legislative solutions to
better protect privacy interests while preserving law enforcement's
ability to fight crime.
II.
CRIMINAL ACTIVITY AND STRONG CRYPTOGRAPHY
A. Criminal Use of Technology
The use of the Internet and computers is growing rapidly and is
paralleled by the exploitation of networks, computers "and databases to
commit crimes and to harm the safety, security, and privacy of others."' 5
"[T]errorists, spies, hackers, and dangerous criminals are increasingly
using computers ... to carry out their heinous acts."' 6 Criminals can use
computers to 1) transmit child pornography; 2) steal customer
information, including credit card and social security numbers, from
businesses; 3) commit large-scale frauds; 4) and plan terrorist strikes
around the world.17 One tool criminals use to safeguard their data and
communications is encryption. 8 Encryption gives Internet users a
heightened degree of privacy in Internet communications and a data
storage capacity unequaled in the physical world. 9 One of the most
common encryption methods used is Pretty Good Privacy (PGP). PGP
13.
14.
Id. at 577-78.
U.S. CONST. amend. IV.
15. Kerr House Statement, supra note 3.
16. Statement for the Record of Donald M. Kerr, Assistant Director Laboratory Division
Federal Bureau of Investigations on Carnivore Diagnostic Tool, Before the United States Senate. The
Committee
on
the
Judiciary
2
(Sept.
6,
2000),
available
at
http://www.fbi.gov/congress/congress00/kerr090600.htm [hereinafter Kerr Senate Statement]..
17. Kerr House Statement, supra note 3. Suspected shoe-bomber Richard Reid left data on his
laptop connecting him to Al Qaeda and sent e-mails from Internet cafes. Ben Taylor, Shoe Bomber
Link to Al Qaeda Terror Trail, DAILY MAIL, Feb. 4, 2002, available at 2002 WL 3310294. "Ramzi
Yousef, the mastermind of the World Trade Center bombing, stored detailed plans to destroy United
States airliners on encrypted files on his laptop computer." Kerr Senate Statement, supra note 16.
18.
Edward L. Allen, CriminalsAre Tech-Savvy, USA TODAY, Aug. 30, 2001. at 12A. In United
States v. Scarfo, Nicodemo Scarfo, Jr. encrypted his gambling files using Pretty Good Privacy (PGP).
180 F. Supp 2d at 581 (D.N.J. 2001).
19. Orin S. Kerr, The Fourth Amendment In Cyberspace: Can Encryption Create A "Reasonable
Expectation of Privacy?," 33 CONN. L. REV. 503, 503 (2001).
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[Vol. 2002
uses a two key system with a passphrase to encrypt plain text into
ciphertext, and to decrypt the ciphertext back to plain text. ° PGP is such
a strong cryptography that it has been said, ". . . even a billion computers
doing a billion checks a second
... [could] not decipher the result...
2
before the end of the universe." '
B. Strong Cryptography - Pretty Good Privacy
"Cryptography is the science of using mathematics to encrypt and
decrypt data. 2' 2 Two types of cryptography exist: conventional
cryptography and strong cryptography.2 3 Conventional cryptography,
also known as secret-key or symmetric-key encryption, utilizes one key
for both encryption and decryption. 4
PGP and other strong
cryptography methods used today utilize a two-key, or public-key,
system consisting of a public key, a private key and a passphrase Plain
text is encrypted into ciphertext, a mathematical algorithm, using the
public key. 26 The public key is shared with those who wish to send
encrypted data.27 Plain text can only be encrypted with the public key; it
cannot be decrypted. 28 To decrypt the ciphertext the corresponding
private key is needed. 29 Although they are related, the private key
cannot feasibly be mathematically deduced from the public key.3" Data,
which can be encrypted by anyone, can only be decrypted by the
possessor of the private key, thus ensuring the ability of one recipient to
maintain secure communications with multiple senders." This allows
20. How PGP Works, at http://www.pgpi.org/doc/pgpintro/
(last visited Feb. 10, 2002).
Ciphertext is the encrypted version of the readable plain text. Id.
21. Id. Experts estimate that it would take several million years for a supercomputer to break an
Internet communication encrypted with a 128-bit key. Kerr. supra note 19. at 530 (citing BRUCE
SCHNEIER, APPLIED CRYPTOGRAPHY, 153 (2d ed. 1996)).
22. How PGP Works, supra note 20.
23. Id.
24. Id. Conventional cryptography is most useful for data that isn't going anywhere. Id.
However, if one wants to transmit data using conventional cryptography, privacy requires that both
the sender and recipient keep the key secret. Id.
25. ld.Keys are values that a cryptographic algorithm uses to produce a specific ciphertext. Id.
They are basically really large numbers made of zeros and ones. See Kerr, supra note 19, at 530. The
length of a key represents the level of encryption where for example a 256-bit key contains a
combination of 256 zeros and ones and has 11,579,000,000,000,000,000,000,000,000,000,000,000,000
possible key combinations. Id.
26. How PGP Works. supra note 20. A session key is created and the file is then encrypted with
the session key which itself is encrypted with the public key. Id.
27. Id. A particular user gives his public key to all with whom he communicates. d.
28.
Id.
29. Id. The private key is kept secret to a specific user and is not shared with anyone, unlike
conventional cryptography. Id. The private key is used to decrypt the encrypted session key and the
session key is used to decrypt the data. id.
30. Id. The public and private keys are mathematically related, and given enough time and
computing power, the private key could be derived from the public key. Id. The user needs to
consider the resources of those who may try to "crack" his encryption when choosing the size of the
key. Id. A very large key could take years to decipher, but it takes longer to encrypt the data. Id.
31.
Id.
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SPYING ON THE MOB
secure data to be transmitted over the Internet or any other data channel
in which the secure data is encrypted by the sender so that only the
recipient can decrypt it. This eliminates the need for sharing passwords
and decreases possible security breaches associated with conventional
cryptography.32 Public and private keys are kept on the computer in
encrypted form (keyrings).33 Because the private key can be long and
complicated, it is encrypted on the recipient's machine using a
passphrase or secret key.34 The passphrase can be any one of a number
of combinations of uppercase and lowercase letters, numbers, and
punctuation marks.35 A passphrase is generally longer than a password
so it is less susceptible to dictionary attacks and other standard codebreaking attempts. 36 The advent of two-key encryption has enabled
criminals to encrypt and transfer files without divulging their passwords
or passphrases to others who might eventually share that information
with law enforcement personnel.
III.
HIGH-TECH LAW ENFORCEMENT
TOOLS
EMPLOYED BY THE
FEDERAL BUREAU OF INVESTIGATIONS
"In recent years, the FBI has encountered an increasing number of
criminal investigations in which the criminals use the Internet to
communicate with each other or to communicate with their victims."37
Because many Internet Service Providers (ISPs) lacked the ability to
filter communications to identify a particular subject's messages while
excluding all others, the FBI developed a diagnostic tool known as
Carnivore." Carnivore allows the FBI to intercept and collect specific
data at an ISP pursuant to a federal wiretap order.39 The data collected is
necessarily narrow to comply with stringent restrictions under federal
wiretapping laws." Some privacy advocates question whether Carnivore
only gathers data authorized under the wiretap order or whether it
unnecessarily encroaches upon an individual's reasonable expectation of
privacy.4 The events of September 11, 2001, have prompted the CIA to
seek authorization for the interception of all e-mails sent from overseas
32. Id.
33. Id. Public and private keys are kept in separate files known as keyrings. Id. All public keys
are kept in the public keyring and private keys are stored in a separate private keyring. Id.
34. Id.
35. Id.
36. Id. A passphrase is longer than a password, which makes it less susceptible to programs
utilized to crack passwords. Id. A passphrase should consist of many words with upper and lower case
letters, numerics, and punctuation and it should be difficult for you to forget but hard for others to
figure out. Id.
37. Carnivore, supra note 2.
38. Id.
39. Id.
40. Id.
Because what is collected is encompassed by the definition of "electronic
communications" in the wiretapping statutes, federal authorities must comply with the applicable
statutory requirements. 18 U.S.C. §§ 2510-22 (2001).
41. Grier. supra note 6. at 375.
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to the United States.42 However, interception of data is fruitless if the
sender and recipient utilize strong cryptography such as PGP, described
above.
Due to the difficulty of decrypting ciphertext files, the government
has countered these encryption techniques with a Keystroke Logger
System (KLS).43 Although the precise technical specifications are
unavailable," the KLS records keystrokes entered into a computer
keyboard when the computer's modem or other communication devices
are not in use.45 The KLS consists of a combination of firmware,
software and/or hardware, and is embedded into the host computer to
The KLS program examines each keystroke
conceal its existence.'
individually, and if no communications device is being used
simultaneously, the keystroke is recorded. This eliminates the possibility
of recording information that is being transmitted through or in route to
a modem or other communication device.47 This system has allowed the
government to utilize traditional search warrants,48 thereby avoiding
more stringent wiretapping statute requirements. 9 Each component of
the KLS produces an "output," all of which are combined to produce the
composite output of the KLS.5 °
Because of the secrecy required in gathering data, installation of the
KLS must be done surreptitiously. 5 Secret installation, however, is not
without risks. To install the system onto a suspect's computer, the FBI
must enter the premises by breaking and entering pursuant to a valid
warrant. The suspect may be in the premises or return while the officers
are installing the KLS, making this mode of gathering evidence
inherently more dangerous than traditional search warrants.
To avoid the risks associated with installing the KLS onto a
suspect's computer, the FBI is developing a software version of the KLS
known as Magic Lantern, which utilizes a computer virus for remote
installation on a suspect's machine to obtain the suspect's password or
42. Jeremy Campbell, Less Power To The CIA People, EVENING STANDARD- LONDON, Jan. 22,
2002, available at 2002 WL 11331577.
43. Jonathan Krim, High-Tech FBI Tactics Raise Privacy Questions,WASH. POST, Aug. 14, 2001,
at Al, available at 2001 WL 23186852.
44. The FBI has successfully kept the technical details secret pursuant to the Classified
Information Procedures Act. United States v. Scarfo, 180 F. Supp. 2d 572, at 575-76, 580-81 (D.N.J
Dec. 26,2001).
45. Id. at 582.
46. Id. at 577
47. Id. at 582.
48. See Order Granting Application for Surreptitious Entry, United States v. Scarfo, Criminal
No. 00-404 (D.N.J. May 8, 1999), availableat http:llwww2.epic.org/cryptolscarfo/order_5-99.pdf.
49. 18 U.S.C. §§ 2510-2522 (1994).
50. Affidavit of Randall Murch at 5, United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26,
2001), available at http://www.epic.org/crypro/scarfo/murch-aff.pdf Murch Aff. [hereinafter Murch
Aff.]
51. Leo A. Dawson, Jr. Affidavit in Support of Application for Surreptitious Entry 1 62, at 33,
United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26, 2001), availableat http://www2.epic.org/
crypto/scarfo/affidavit_5_99.pdf.
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SPYING ON THE MOB
passphrase 2 This program could be e-mailed to the suspect by relatives
or friends or installed through network vulnerabilities in the computer
system, thereby eliminating the need for a physical break-in and the
dangers associated therewith." Like the KLS, Magic Lantern records
keystrokes typed on the computer, but it is also capable of e-mailing an
output data file back to law enforcement personnel.54 However, Magic
Lantern inherently runs the risk that anti-virus software will identify and
destroy the virus, rendering the Magic Lantern ineffective. Although it is
rumored that some anti-virus software developers in the security
software industry will assist the FBI, "[m]ajor anti-virus software
companies have vehemently denied any knowledge... saying they would
not do anything to compromise the security of their customers."55
Sophos Anti-Virus Inc. of Wakefield, Massachusetts, has assured its
customers that they rate higher than the FBI so no such loophole would
be left in their software to accommodate the government program.56
Although the KLS and Magic Lantern law enforcement tools are
fairly recent developments, hardware and software versions of 5a7
keystroke logging system are commercially available on the Internet.
Although one cannot purchase a version that is transmitted by a
computer virus, most of the other functions performed by the KLS and
Magic Lantern systems are currently available.
IV.
OVERVIEW: UNITED STATES V. SCARFO AND RELATED LAW
A. Background: United States v. Scarfo
Nicodemo Scarfo, a New Jersey mob boss and son of the notorious
and now imprisoned Nicodemo Scarfo, Sr. ("Little Nicky"), used PGP to
encrypt computer records of alleged illegal gambling operations." In
January of 1999, pursuant to a search warrant, the FBI seized Scarfo's
52. Sullivan, supra note 8.
53. Jovi Tanada Yam, [email protected] Worst Tech Product of 2001?, Bus. WORLD (PHILIPPINES),
Dec. 27, 2001, available at 2001 WL 31372969.
54. Id.
55. Id. The anti-virus industry has many serious concerns that programs such as Magic Lantern
could be a tool for hackers as well as for the government. William Jackson, Industry Balks at FBI
Plans for a Back Door, GOVT COMPUTER NEWS, Jan. 7,2002, available at 2002 WL 9596476.
56. See Yam, supra note 53.
57. Investigator 4 by WinWhatWhere.com has the "ability to invisibly monitor and record all
computer activity including keystrokes...." WinWhatWhere Investigator, at
http://www.winwhatwhere.conw3i4/index.htm (last visited Aug. 30, 2002). KeyGhost.com sells
hardware including connectors and keyboards that contain flash ROM that store keystrokes for future
downloads.
KeyGhost KeyLogger: Tiny hardware key loggers record keystrokes at
http://www.keyghost.com (last visited Aug. 30, 2002). KeyLogger.com sells a software version similar
to Magic Lantern. KeyLogger.com Software Products, at http://www.keylogger.com/products.htm
(last visited Aug. 30, 2002). KeyLogger.com also offers a StealthMail Program, "an e-mail 'robot'
which sends out e-mails at pre-set time intervals with any file attachment." Id.
58. Dawson Aff., supra note 51 4, at 3, 1 28, at 30.
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computer from his place of business.59 They recovered a "Factors" file
which was encrypted using the PGP program.6" After failing in their
attempts to decrypt the file, the FBI developed the Keystroke Logger
System.6 In May of 2000, the government sought and obtained a warrant
for surreptitious entry into the business operated by Scarfo to install the
KLS on his computer. 62 The warrant was for a thirty-day period, and
allowed entry and reentry as often as possible to recover data and
perform maintenance on the KLS. 63 The officers entered the business
four times and recovered twenty-seven pages of text, including Scarfo's
passphrase, which was suspiciously the very last thing recorded by the
KLS. 6 The passphrase was used to decrypt data, which revealed a record
of gambling and loansharking operations maintained by Scarfo. 65 Based
on that information, in June 2000, a three-count indictment was returned
by a federal grand jury, which led to the arrest of Nicodemo Scarfo and
Frank Paolercio.66 Scarfo filed a motion for discovery requesting the
technical details of the KLS. 67 The judge ordered the government to file
a report outlining the technical details of the KLS. 68 The government
invoked the Classified Information Procedures Act,69 claiming that
disclosure of the technical specifications of the KLS would cause
identifiable damage to the national security of the United States. y° The
court then required the government to give an unclassified summary of
After reviewing all of the motions and
how the KLS operates.71
affidavits and holding an ex parte in camera hearing concerning the
technical details of the KLS, the court denied Scarfo's motion to suppress
the data collected by the KLS and denied Scarfo's motion for discovery
of the more detailed technical specifications of the KLS. y2 The court,
however did allow Scarfo discovery of the unclassified summary of how
59. Id.
60. 1d.
61. 1d.
62. See Order Granting Application for Surreptitious Entry, supra note 48.
63. Id.
64. Supplemental Brief of Defendant Nicodemo S. Scarfo, Memorandum of Law in Support of
Defendant's Position in Regard to Discovery, United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J.
2001) (No. 00-00-404). at http:llwww.epic.orglcryptolscarfolsup-suppress.mot.pdf.
65. Robert Rudolph, Lawmen Explain, In General, How They Cracked Scarfo Code, THE STARLEDGER (Newark. N.J.), Oct. 11, 2001, availableat 2001 WL 28898087.
66. Id.
67. Defendant's Motion for Discovery at 2, United States v. Scarfo. 180 F. Supp. 2d 572 (D.N.J.
2001) (Criminal No. 00-404), availableat http://www2.epic.org/crypto/scarfo/def disc mot.pdf.
68. Court Order Requiring Government to Disclose Details of KLS at 5. United States v. Scarfo,
available at
No.
00-404),
(Criminal
2001)
(D.N.J.
2d
572
F.
Supp.
180
http://www2.epic.org/crypto/scarfo/order_8_7_.01.pdf.
69. Pub. L. No. 96-456, 94 Stat. 2025. amended by Pub. L. No. 100-690, 102 Stat. 4396 (1988).
70. Affidavit of Neil Gallagher in Support of KLS Classification at 3, United States v. Scarfo, 180
available at
No. 00-404),
(Criminal
26. 2001)
Dec.
572
(D.N.J.
F.
Supp. 2d
http://www.epic.org/crypto/scarfo/gov-afLcipa.pdf.
71. Court Order Requiring Government to Disclose Details of KLSsupra note 68, at 4-5.
72. United States v. Scarfo. 180 F. Supp. 2d 572, 583 (D.N.J. Dec. 26. 2001). The court did allow
the defendants motion for discovery for other requested items including the unclassified summary of
the operation of the KLS. Id.
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SPYING ON THE MOB
the KLS operates. Ultimately, Nicodemo Scarfo pled guilty, ending his
legal battle and delaying an adjudication of the issue by a federal
appellate court.7"
B. The "Keystroke Logging System" and TraditionalSearch Warrants
The use of KLS potentially implicates two important warrant
requirements under the Fourth Amendment: (1) the things to be seized
are to be particularly described; and (2) the warrant shall be limited
reasonably in time, place, and scope of execution, including notification,
when reasonable, to the occupant of the premises to be searched.
The particularity requirement stems from the Constitution, which
states "It]he right of the people to be secure ... against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue ...[without] particularly describing the place to be searched, and
the persons or things to be seized."74 The Supreme Court has stated,
"[t]he requirement that warrants shall particularly describe the things to
be seized makes general searches under them impossible and prevents
the seizure of one thing under a warrant describing another."75 A
general warrant authorizes a general exploratory rummaging through a
person's belongings.76 "[N]othing is left to the discretion of the officers
executing the warrant."77 Additionally, states generally require the
police to give notice of their authority and purpose prior to executing a
8
search warrant. In Wilson v. Arkansas,"
a unanimous Court held "that
the common-law principle of announcement ... is an element of the
reasonableness inquiry under the Fourth Amendment."
The
announcement
requirement
serves several purposes, including
decreasing the potential for violence due to an unannounced breaking
and entering, protecting privacy by minimizing the chance of entry into
the wrong premises, and preventing physical destruction of property by
giving the occupant opportunity and time to admit the police."
However, in cases where there is a risk of evidence destruction or
physical harm to the police, the announcement requirement is
superceded"'
Traditional search warrants are normally executed at a specified
time and place in search of particular items. Police then seize items they
73. George A. Chidi, Jr., Mobster Nailed by FBI Keystroke Logger Pleads Guilty. IDG NEws
SERV., Mar. 1, 2002 at http://www.idg.net/idgns/2002/03/01/MobsterNailedByFBIKeystrokeLogger.
shtml.
74. U.S. CONST. amend. IV.
75. Marron v. United States, 275 U.S. 192. 196 (1927).
76. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
77. Marron, 275 U.S. at 196.
78. 514 U.S. 927, 930 (1998).
79. LAFAVE, supra note 11, § 3.4(h).
80. See Richards v. Wisconsin, 520 U.S. 385, 388 (1997) (recommending that exceptions to
knock-and-announce rule be determined on a case-by-case basis, and rejecting a blanket exception for
felony drug cases).
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[Vol. 2002
are searching for and any other illegal items in plain view. At the time of
a search, previously disposed or destroyed items- old mail, letters, or
hand-written notes - are not subject to seizure. Use of the KLS, in
contrast, is the equivalent of a continual search of one's personal items
over a specified period of time; even previously "deleted" letters or
typed notes are still capable of being seized per se. The KLS seizes
information that would not have been available under a traditional
search warrant if the suspect had destroyed physical papers or other
evidence prior to execution of the warrant. However, the KLS is limited
in time, place, and scope, in the sense that it only records keystrokes on a
particular computer for a particular time period authorized by the
warrant.
C. Olmstead and Title III
In Olmstead v. United States,81 the Supreme Court held that the
interception of messages on telephone lines was not a search within the
meaning of the Fourth Amendment because no houses were searched,
and because phone messages are intangible things which cannot be
seized. Concerned about intrusive, unwarranted invasions of privacy,
Congress enacted the Federal Communications Act of 1934,82 providing
that "no person not being authorized by the sender shall intercept any
communication and divulge the existence, contents, substance, purport,
effect, or meaning of such intercepted communication to any person."83
Through the passage of time it became clear that the fears expressed by
Justice Brandeis, dissenting in Olmstead, were becoming realities. 4
More sophisticated means of electronic surveillance were developed and
put into use.85 In 1967 the Supreme Court retreated from their original
position in Olmstead. In Berger v. New York,8 6 the Court held that a
state eavesdropping statute violated the Fourth Amendment. In Katz v.
United States,87 the Supreme Court held that use of recording devices to
intercept conversations from a public telephone booth was a violation of
the Fourth Amendment because it violated the defendant's "reasonable
expectation of privacy." These decisions made it clear that electronic
eavesdropping and wiretapping are also subject to the limitations of the
Fourth Amendment.88 A year later Congress amended the wiretapping
laws by enacting Title 11189 of the Omnibus Crime Control and Safe
81.
82.
277 U.S. 438 (1928).
48 Stat. 1103 (codified in 47 U.S.C. § 605 (2001)).
84.
85.
86.
87.
See Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).
LAFAVE, supra note 11,§ 4.1(c).
388 U.S. 41 (1967).
389 U.S. 347, 361 (1967) (Harlan, J.,
concurring).
88.
89.
LAFAVE, supra note 11, § 4.1(c).
Title III is the common name used for this legislation and subsequent legislation covering
83.
LAFAVE, supra note 11, § 4.1(b).
wiretapping. See id. at § 4.2(a).
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Streets Act. 90
However, this Act only protected oral or wire
communications of aural transfers.91 In 1986 Congress further amended
92
Title III with the Electronic Communications Privacy Act (ECPA).
"The principal purpose of the ECPA amendments was to extend to
'electronic communications' similar protections against unauthorized
interceptions that Title III had been providing for 'oral' and 'wire'
communications via common carrier transmissions."9 3 In November of
2001 Congress again amended sections of Title III to help prevent
terrorist activities against the United States.94 The 2001 amendments will
not be discussed in this paper because they primarily pertain to the
gathering of information relating to foreign intelligence and the national
security of the United States. Today's wiretapping laws embody an
evolution beginning with Olmstead and ends at a point that extends
beyond the traditional protections offered by the Fourth Amendment.
Title III warrants, which seek interception of oral or wire
communications, require authorization of a high-level Department of
Justice (DOJ) official prior to application by the local United States
Attorney's office.95 Title III warrants seek interception of electronic
communications and require the authorization of a government attorney
before the warrant application can be made to the judge.96 Unlike
traditional search warrants,9" Title III warrants cannot be issued by a
federal magistrate judge; they can only be issued by a federal district
court judge and certain authorized state judges.98 Interception of
communications is limited to situations where such interception may
provide, or has provided, evidence of certain delineated offenses.99
Applications for wiretapping authorization must show probable cause
and state with specificity and particularity details of the offense that has
been or will be committed, description of the nature and location of the
facility where the interception will take place, type of communications to
be intercepted, the identity of the person(s), if known, committing the
offense and whose communications are being intercepted."° Thus, the
90. Pub. L. No. 90-351,82 Stat. 197 (1968).
91. Id.
92. Pub. L. No. 99-508, 100 Stat. 1848 (1986).
93. Brown v. Waddell, 50 F.3d 285, 289 (4th Cir. 1995).
94. Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept
And Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
95. 18 U.S.C. § 2516,2518 (2000).
96. 18 U.S.C. § 2516.
97. Traditional search warrants must be issued by a "neutral and detached magistrate."
Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971). Under the Fourth Amendment the magistrate
does not necessarily need to be a lawyer or a judge, but "must meet two tests. He must be neutral and
detached, and he must be capable of determining whether probable cause exists for the requested
arrest or search." Shadwick v. City of Tampa, 407 U.S. 345, 350 (1970).
98. 18 U.S.C. § 2510(9).
99. 18 U.S.C. § 2516.
100. 18 U.S.C. § 2518(1). The application must also "state the applicant's authority to make such
application.., the identity of the ... officer making the application.., the officer authorizing the
application ... a full and complete statement as to whether or not other investigative procedures have
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criminal wiretapping statutes "focus on gathering hard evidence" and not
Court orders have a thirty-day
on gathering general intelligence.'
maximum surveillance period and interceptions must terminate sooner if
the objectives are met. 11 2 Judges "may require reports to be made...
showing what progress has been made toward achievement of the
authorized objective and the need for continued interception.., at such
' 3 If extensions are necessary, they
intervals as the judge may require. 'lu
are allowed up to a maximum of an additional thirty days."~
The additional limitations and constraints imposed by Title III
evidence a Congressional intent to grant greater protections where
invasions of personal privacy are so intrusive. Advances in technology
have given society more efficient ways of communication, including
cellular, satellite, and Internet communications. These new methods of
communication are not entirely secure; each has vulnerabilities that
allow for intrusion. Much of what once was sent by regular mail is now
sent via e-mail, and yet an equivalent means to the Carnivore system
does not exist for intercepting mail sent through the United States Postal
Service. Despite these advances in technology to date, the statutory
exclusionary rule applicable to interception of oral and wire
communications has not been extended to electronic communications.""
Thus, any evidence obtained under a warrant seeking interception of
electronic communications that complies with the requirement of Title
III will not result in suppression of that evidence.
D. Video Surveillance
Video surveillance has been used more readily in the past decade by
law enforcement and private businesses that seek to protect themselves
from employee or customer misconduct." However, video surveillance
is considered far more intrusive than conventional investigative
techniques. 7 Because of its intrusive nature, the use of secret video
surveillance has often been challenged as a violation of the Fourth
Amendment's prohibition against unreasonable searches and seizures.
been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too
dangerous ...a statement of the period of time for which the interception is required to be
a full and complete statement of facts concerning all previous applications...
maintained ...
involving any of the same persons, facilities, or places specified in the application, and the action taken
by the judge on each such application[.]" § 2518(1).
101. Carnivore, supra note 2.
102. 18 U.S.C. § 2518(5).
103. 18 U.S.C. § 2518(6).
104. 18 U.S.C. § 2518(5).
105. § 2515. Incorporation of electronic communications into the statutory exclusionary rule was
debated in the House of Representatives in H.R. 5018, The Electronic Communications Privacy Act of
2000. but inclusion was ultimately rejected. Summary of H.R. 5018, The Electronic Communications
Privacy Act of 2000. CENTER FOR DEMOCRACY & TECHNOLOGY- CYBER SECURITY DIVISION, Sept.
17, 2000. available at http://www.cdt.org/security/000927hr5018.shtml.
106.
107.
Theuman, supra note 5, § 2.
Id.
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The following discussion is applicable to silent video surveillance only, as
any video surveillance recording video and sound would require
compliance with Title III due to the interception of oral communications
and aural transfers."'
Courts generally reject the argument that use of secret video
surveillance is unconstitutional per se."' Courts vary as to what is
required for issuance of a warrant authorizing secret video surveillance,
however. Although secret video surveillance is not unconstitutional per
se, the Fourth Amendment's warrant requirement still applies to video
surveillance.""
Under certain circumstances, some courts allow
warrantless video surveillance."' Where a warrant is required, many
courts impose more stringent requirements, borrowing Title III's
provisions relating to the Fourth Amendment's particularity and
minimization requirements due to the increased invasion of privacy
imposed by the use of video surveillance." 2
For secret video surveillance, Torres and Biasucci borrow four
provisions of Title III: 1) the issuing judge must be satisfied that "normal
investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too dangerous;""' 3 2) the
warrant must contain "a particular description of the type of
communication sought to be intercepted, and a statement of the
particular offense to which it relates;"" 4 3) the period of interception
must not be "longer than necessary to achieve the objective of the
authorization, or in any event longer than thirty days" (extensions
permissible);" 5 and 4) the warrant must require the interception "be
conducted in such a way as to minimize the interception of
not otherwise subject to interception under [Title
communications
111].5511 6
108. 18 U.S.C. § 2510(2).
109. United States v. Torres. 751 F.2d 875 (7th Cir. 1984). See also United States v. Andonian.
735 F. Supp. 1469 (C.D. Cal. 1990).
110. United States v. Falls, 34 F.3d 674, 683 (8th Cir. 1994).
111. United States v. Cox, 836 F. Supp. 1189 (D. Md. 1993) (holding consensual video surveillance
did not violate the Fourth Amendment). See also State v. Clemmons, 81 Wash. App. 1003 (Div. 1996),
available at 1996 WL 146721 (holding that persons subjected to video surveillance had no reasonable
expectation of privacy).
112. Torres, 751 F.2d at 883-84. See also United States v. Biasucci, 786 F.2d 504, 507-12 (2d Cir.
1986).
113. 18 U.S.C. § 2518(3)(c).
114. 18 U.S.C. § 2518(4)(c).
115. 18 U.S.C. § 2518(5).
116. Id.
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V. DISCUSSION
A. The "Keystroke Logger System" and the Classified Information
ProceduresAct
Federal law enforcement encompasses numerous organizations,
including the Federal Bureau of Investigation, Central Intelligence
Agency, National Security Agency, Immigration and Naturalization
Service, Drug Enforcement Agency, and the Bureau of Alcohol,
Tobacco, and Firearms. As one might expect, criminal investigations can
overlap from one organization to another. Methods employed to fight
crime and gather evidence are also shared among departments. Many
groups, especially those operating internationally, use sensitive tools and
clandestine procedures to gather evidence and information.
Full
disclosure of such operations could jeopardize the safety and well-being
of men and women serving the United States abroad. When secret
operations and techniques are employed in domestic law enforcement
operations, however, disclosure of the methods employed and their
function is essential in determining whether a suspect's constitutional
rights have been violated.
In Scarfo's case, the Federal District Court for the District of New
Jersey found that operating the KLS while the computer's modem and
communications devices were inactive rendered Title III inapplicable. 17
The Court, however, did not allow the defendants' motion for discovery
of the technical details of the KLS. "8 The government's refusal to
release the technical details fails to ensure that no electronic
communications are being intercepted." 9 Even assuming electronic
communications are being intercepted, under the law as it exists today,
they would not be subject to the statutory exclusionary rule. 2 ° In Kyllo
v. United States, 2' the Supreme Court extensively reviewed the
technology involved and determined that its application to the defendant
violated the Fourth Amendment.
Nicodemo S. Scarfo and Frank Paolercio were denied the
opportunity to discover how the KLS operated.12 ' The government
successfully argued that it has the right to keep information classified 23
117. United Stated v. Scarfo, 180 F. Supp. 2d 572, 582 (D.N.J. Dec. 26, 2001).
118. Id.
119. Id.
120. 18 U.S.C. § 2515 ("Whenever any wire or oral communication has been intercepted, no part
of the contents of such communication and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding .... ).
121. 533 U.S. 27 (2001). In Ky~lo, the Court evaluated the technology involved in a FLIR
(forward looking infra red) device used by law enforcement officers to locate suspect marijuana
harvesting in personal residences, implicating the defendant. Id.
122. United States v. Scarfo, 180 F. Supp. 2d 872,580-81.
123. Id.
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under the Classified Information Procedures Act (CIPA).'24 Without
technical specifics, though, there is no assurance that the system itself is
not intercepting keystrokes contemporaneously with modem operations.
However, the Supreme Court in Kyllo indicated that one reason they
deemed the intrusion a violation of the Fourth Amendment was that the
technology was not widely available commercially in the United States.'25
Software and hardware versions of the type the KLS used against Scarfo
are readily available on the Internet.'2 6 In Scarfo, the Court held an ex
parte in camera hearing to review the technical details of the KLS and
found that allowing disclosure would cause identifiable damage to the
national security of the United States.'27 The district court reasoned that
CIPA "strikes a balance between national security interests and a
criminal defendant's right to discovery by allowing for a summary which
meets the defendant's discovery needs."' 28 The defendants were granted
the Murch Affidavit - the unclassified summary of the KLS. 2 9 But the
Murch Affidavit was merely a statement that the KLS did not record
keystrokes while the modem was operational. 3
This was a highly
questionable proposition since the output of the KLS (which was
authorized for sixty days) was twenty-four pages of text, and the very last
thing typed was the passphrase sought by the FBI.'
The government's argument of necessity for national security
interests is refutable. In today's high-tech environment, technology
dominates the intelligence arena, any foreign nations or subjects who
suspect that the KLS is being used to spy on them will now be analyzing
their computers for aberrations in hardware, firmware or software that
would indicate the presence of the KLS. Discovery of its presence is
most likely inevitable.
Should the government be able to spy on its own citizens while
denying adversely affected citizens an opportunity to examine the
technology used to determine whether or not their constitutional rights
have been violated? When the federal government, out of concern for
national security, utilizes technology to spy, the interest in protecting the
constitutional rights of citizens adversely affected should outweigh any
national security interest. Without such a rule, the government would be
virtually unrestrained in its use of spy technology in domestic law
124. Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025 (1980), amended by
Pub. L. No. 100-690, 102 Stat. 4396 (2002).
125. Kyllo, 533 U.S. at 40.
126. See WinWhatWhere Investigator, supra note 57.
127. Scarfo, 180 F. Supp. 2d at 575.
128. Id. at 583.
129. Id.
130. Murch Aff., supra note 50, at 5-6.
131. Memorandum of Law in Support of Defendant's Position in Regard to Discovery, supra note
64. The probability of such an occurrence over a broad length of time is very low, coupled with the
low probability that the file was opened only for the sake of opening it and that nothing else was typed
along with the fact that only twenty-four pages of text were recovered over a sixty-day period. Id.
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enforcement, subject only to review through ex parte in camera hearings
in which a member of the judiciary must evaluate what is often very
complex technology to determine whether a defendant's constitutional
rights have been violated. Additionally, because the defendant takes no
part in the hearing, that which is presented for evaluation by the i-udge is
solely what is set forth by the government. Such a scheme could
potentially result in an abuse of power, ultimately denying those
adversely affected the opportunity to conduct a thorough review of the
technical details to determine if their rights guaranteed by the
Constitution are violated. Adopting a rule requiring disclosure would
not dampen the effectiveness of the government's ability to protect
national security; rather, it would merely limit the government's use of
more intrusive tools in the domestic arena to those which the
government is willing to disclose to the general public. Essentially, the
government would be forced to choose only those techniques which are
not violative of the constitutional rights guaranteed to every person in
the United States. Although this could have an adverse effect on law
enforcement in the United States by enabling criminals to work around
such technology, this would not be the first instance in which criminal
elements have found ways to evade the authorities and circumvent
capture."'
B. The "Keystroke Logger System" and Title III
As discussed above, Title III warrants for electronic surveillance
have much more stringent requirements than traditional search
warrants. 33 However, Title III warrants apply only to wire, oral, or
electronic communications as they are statutorily defined. 34 Wire
communication includes only aural transfers via wire, cable, or other
similar connection between two points."5 "Oral communication" means
any oral communication by a person exhibiting an objective expectation
of privacy; yet it does not include electronic communications.'36 18
U.S.C. § 2510 defines electronic communications as, "any transfer of
signs, signals, writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electro-magnetic,
photoelectronic or photooptical system that affects interstate or foreign
commerce, but does not include" any oral or wire communications,
communications via a tone-only paging device, any tracking device
communications, and electronic funds transfer information stored with a
132. Criminals use encryption and technology to get around current law enforcement techniques
as evidenced by United States v. Scarfo.
133. See supra notes 85-104 and accompanying text.
134. 18 U.S.C. § 2510 (2000).
135. Id. § 2510(1).
136. Id. § 2510(2).
SPYING ON THE MOB
No. 1.]
financial institution.'37 Keystrokes are neither oral communications nor
aural transfers. Therefore, if Title III is applicable, these keystrokes must
be electronic communications, requiring that they be transferred by a
In Scarfo, the government
system affecting interstate commerce.'
successfully argued that recorded keystrokes typed on a computer
without active communications does not constitute an interception of
electronic communications under Title III. 9
The government took the position in Scarfo that data collected by
the KLS does not affect interstate commerce nor is it intercepted because
the modem is inactive while the keystrokes are recorded. 4 " One could
argue this position is flawed in at least two respects. First, a user can
queue an e-mail and send it at a later time. A user may wish to type his
e-mails and messages, connect to the Internet, and then send them at
once to minimize interruption of his phone service. These e-mails would
be intercepted and recorded by the KLS because they are not
contemporaneous with modem operation. Second, many users may wish
to communicate via e-mails with attachments rather than using the
framework of the e-mail program itself. These keystrokes would also be
recorded, even though they would be later e-mailed through the Internet.
To protect e-mails or attachments typed during modem operation and to
refuse protection for e-mails typed prior to connecting to the Internet is
an unwarranted distinction that frustrates the purpose of the ECPA. 4'
However, in Scarfo, the government successfully argued that because the
data recorded by the KLS is not being transmitted contemporaneously
through a modem or other communications device, the data is not
intercepted under Title III.42 The government cites numerous cases
applying the contemporaneous interception standard set forth in United
States v. Turk.'43 However, the sources cited all reflect a situation of
In fact, one case cited by the
post-transmission interception.'"
137.
Id. § 2510(12).
138.
Id.
139. United States v. Scarfo, 180 F. Supp. 2d 572, 582 (D.N.J. Dec. 26, 2001).
140. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions at 25-29,
United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26, 2001) (No. 00-404). available at
http://www2.epic.org/crypto/scarfo/gov-brief.pdf.
141.
Brown v. Waddell, 50 F.3d 285, 289 (4th Cir. 1995).
142. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions, supra note
140.
143. 526 F.2d 654, 659 (5th Cir. 1976) (concluding that "no new and distinct interception occurs
when the contents of a communication are revealed through the replaying of a previous recording").
144. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions, supra note
140 (citing Steve Jackson Games, Inc. v. United States Secret Service. 36 F.3d 457 (5th Cir. 1994));
United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990); United States v. Turk. 526 F.2d 654, 658 (5th
Cir. 1976); Fraser v. Nationwide Mutual Insurance, 135 F. Supp. 2d 623 (E.D. Pa. 2001): Eagle
Investment v. Tamm, 2001 WL 576133 (D. Mass. 2001); Wesley College v. Pitts. 974 F. Supp. 375, 387
(D. Del. 1997); Bohach v. Reno, 932 F. Supp. 1232 (D. Nev. 1996); United States v. Reyes, 922 F.
Supp. 818 (S.D. N.Y. 1996): Payne v. Norwest, 911 F. Supp. 1299 (D. Mont. 1995): United States v.
Moriarty, 962 F. Supp. 217 (D. Mass. 1994); Lopez v. First Union. 129 F.3d 1186 (11 th Cir. 1997).
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government, Fraser v. Nationwide Mutual Ins. Co.,'4 5 is detrimental to
their argument that Title III does not apply to the KLS. In Fraser the
Court stated, "[r]etrieval of a message from storage while it is in the
'
course of transmission is 'interception' under the Wiretap Act."146
In
another case distinguished by Fraser, the Ninth Circuit held that the
contents of a secure website were "'electronic communications' in
intermediate storage that are protected from unauthorized interception
'
under the Wiretap Act."147
The Court in Konop also stated, "[a]n
electronic communication in storage is no more or less private than an
electronic communication in transmission." The KLS does not retrieve
stored data; it intercepts data as it is entered. Analogizing to Fraserand
Konop, if retrieval of intermediate storage is interception then a fortiori
retrieval of the data as it is entered prior to and for the purpose of
transmission is also interception. Queued e-mails and files meant for
immediate e-mail attachment should fall under the protections of Title
III. Data storage, however, is not subject to the statutory exclusionary
rule. Thus, if the court were to determine such queued e-mails were
"data storage," they would not be subject to exclusion, provided that the
requirements of Title III were met.'48 The KLS, as applied in Scarfo,
does not exclude this type of information, therefore Title III should be
applicable in spirit if not literally.
The definition of "electronic communications" is ambiguous as to
which term the phrase "affects interstate or foreign commerce" applies.'49
This denotation could be construed as modifying the transfer of data, the
system used to transfer data, or both. The government's position in
Scarfo reflects its desire to "have its cake and eat it too." The
government's interpretation of Title III would require the transmission
to affect interstate commerce. A literal reading of the statute, however,
suggests a more plausible interpretation requiring that the transmission
be sent by a system affecting interstate commerce. 5 ' Congress regulates
criminal activity primarily under the authority granted to them by the
Commerce Clause of the Constitution. 5 ' The government usually seeks
an expansive definition of what affects interstate commerce, when a
criminal statute is challenged on the basis that Congress has exceeded its
power granted by the Commerce Clause.'
Consider the following
145. 135 F. Supp. 2d 623 (E.D. Pa. 2001).
146. Id. at 635.
147. Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035 (9th Cir. 2001), withdrawn, Konop v.
Hawaiian Airlines, Inc., 262 F.3d 972 (9th Cir. 2001).
148. See, e.g., United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996).
149.
150.
See 18 U.S.C. § 2510 (12) (2000).
Id.
151. U.S. CONST. art. 1, § 8, cl. 3.
152. See United States v. Kallestad, 236 F.3d 225,227-31 (5th Cir. 2000) (holding Congress has the
power under the Commerce Clause to regulate child pornography because it is inherently a national
market and that defendant's film had traveled in interstate commerce satisfying the jurisdictional
element). See also United States v. Santiago, 238 F.3d 213, 215 (2d Cir. 2001) (affirming defendant's
conviction for possession of a firearm that has traveled in interstate commerce by a felon); United
No. 1]
SPYING ON THE MOB
scenario: in Scarfo's case a Title III warrant was successfully obtained for
use of the KLS but Nicodemo Scarfo and Frank Paolercio challenge the
constitutionality of the KLS as applied to their case as beyond the power
granted to Congress under the Commerce Clause. In this hypothetical,
there is no doubt that the government would seek to uphold the
regulation as a valid exercise of the Commerce Power. It would argue
that Scarfo's computer contains a modem, which has been connected to
the Internet at intermittent times,153 and a computer used to connect to
the Internet is without a doubt a system that affects interstate commerce.
Courts have frequently upheld federal criminal statutes using a
jurisdictional hook, requiring only that a physical object has traveled in
interstate commerce."' In such cases, the government would inevitably
argue for a broad construction of the phrase "interstate commerce".
Arguing that Scarfo's single computer has an inconsequential or minimal
and attenuated effect on interstate commerce would also fail. Applying
the principles of United States v. Lopez 55 and Wickard v. Filburn,5l 6 a
high percentage of commercial products, that travel in interstate
commerce, fall within the congressional regulation power due to the
potential aggregate effect of all like products on interstate commerce (an
argument frequently relied on to uphold federal legislation rooted in the
Commerce Clause).
In Scarfo, the government seeks to limit the
meaning of "affects interstate ... commerce"' 57 because it suits its
immediate goal. In summary, the government should not be allowed an
expansive definition of interstate commerce when defending a statute,
while also being allowed a narrow definition when seeking to avoid a
burdensome statute.
Ultimately, government compliance with the requirements of Title
III, (whether or not the intercepted communications were "electronic
communications" as that term is statutorily defined) would have
prevented the suppression of
the evidence because electronic
communications are not protected by the statutory exclusionary rule.'
States v. Nathan, 202 F.3d 230,234 (4th Cir. 2000) (affirming conviction where government only had to
prove defendant's firearm and ammunition had previously traveled in interstate commerce).
153. Memorandum of Law in Support of Defendant's Position in Regard to Discovery, supra note
64.
154. Kallestad, 236 F.3d at 225 (upholding 18 U.S.C. § 2252(a)(4)(B), which states "knowingly
possesses 1 or more books ... or other matter.., that has been mailed, or has been shipped or
transported in interstate or foreign commerce, or which was produced using materials which have
been mailed or so shipped or transported," as a constitutional exercise by Congress of the Commerce
Power); see also Santiago, 238 F.3d at 216: Nathan,202 F.3d at 234.
155. 514 U.S. 549 (1995) (establishing the modern test for valid Congressional exercise of the
Commerce Power).
156. 317 U.S. 111 (1942) (holding valid Congressional exercise of the Commerce Power
establishing limits on individual wheat farmers because of the potential aggregate effect of all wheat
farmers on interstate commerce).
157. 18 U.S.C. § 2510(12) (2000).
158. 18 U.S.C. § 2515.
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C. The "Keystroke Logging System" and Video Surveillance
Non-audio video surveillance gathers visual data, whereas the KLS
gathers only digitized keystroke data. Each method is intrusive in a
different way. The KLS records the keystrokes that are representations
of knowledge that has been transferred to a computer. These can
include an individual's most intimate thoughts, recollection of events,
banking records, letters and messages of a highly personal nature. On
the other hand, video surveillance records visual depictions and
movements, which can include full nudity and acts intended only for the
privacy of the home. Despite these differences, an analogy may be
drawn between the KLS and non-audio video surveillance investigative
methods.
Title III does not expressly include either method of
investigation, thus it is more stringent requirements are not explicitly
applicable to a case involving either method. Both methods constitute an
invasion of privacy more intrusive than that imposed through execution
of a traditional search warrant. When the execution of a traditional
search warrant occurs, it is limited by time and place and by particular
items. Police then seize items they are searching for and any other illegal
items in "plain view." In contrast, video surveillance and the KLS record
ongoing activities over a period of time, and are not limited to what is
available at the time the warrant is executed. For this reason, the added
protections offered by Torres and Biasucci should be afforded to a
defendant against whom evidence obtained by the KLS is sought to be
introduced.
In Scarfo's case, although signed by a magistrate judge, the order
authorizing surreptitious entry and installation of the KLS onto Scarfo's
computer would have met the added requirements of Torres for nonaudio video surveillance.159 Normal investigative techniques failed. The
FBI previously seized Scarfo's computer and recovered the
undecipherable "Factors" file.16 ° Normal methods would have also been
unlikely to succeed in the future, for without the passphrase, no
encrypted files could be deciphered. The order included the particular
"communications" intended for interception and allowed surreptitious
entry to "leave behind software, firmware, and/or hardware equipment
which will monitor the inputted data entered on ...Scarfo's computer by
recording the key related information as they are entered[.]"'' 1 The
order listed specific criminal offenses and corresponding statutes. 62 The
authorization also limited the period of interception to that which was
159.
See Order Granting Application for Surreptitious Entry, supra note 48.
160. Dawson Aff.. supra note 51. 157, at 29.
161. Order Granting Application for Surreptitious Entry, supra note 48,at 4.
162. Id. Information was sought relating to "illegal gambling, loansharking and other
racketeering offenses, and all of which are fruits, instrumentalities and/or evidence of violations of 18
U.S.C. § 371 (conspiracy. §§ 892-94 (extortionate credit transactions). § 1955 (illegal gambling
business) and § 1962 (RICO)[.]" Id.
No. 1]
SPYING ON THE MOB
necessary to achieve the objective within a thirty-day period.163 Finally,
the order authorized recovery methods which would not capture
communications protected under Title III, minimizing the actual data
recorded.'64
VI. PROPOSED SOLUTIONS
A. Legislative Amendments
Because
KLS captures
the
all keystrokes
not typed
contemporaneously with modem operations, the system's potential for
intrusion surpasses phone taps, pen registers, trap and trace devices and
conventional audio bugs. Interception of phone conversations or e-mails
seems much less intrusive because the individual sends these
communications beyond the boundaries of his home. The KLS records
information entered into a computer inside the boundaries and sanctity
of the home. The information technology revolution has led to digital
storage in computers of data previously kept in a typed or handwritten
format. The KLS can intercept a broad range of data exceeding that
which other electronic surveillance methods can intercept, including
letters, diaries, queued e-mails and financial information, whether
communicated outside the home or not. Government investigators must
peruse all of this personal information to discern the passphrase or other
information sought. As discussed above, the KLS records much more
than conventional techniques currently within the statutory definition of
electronic communications, such as phone taps. Because of this potential
level of intrusion, the most viable solution is a modification of Title III.
Such a modification should attack the appropriate safeguards offered by
Title III to the KLS and Magic Lantern systems, whether or not they
include the statutory exclusionary rule.
B. Judicial Remedies
Considering the potential intrusiveness of the KLS and the intent of
Congress in passing the Electronic Communications Privacy Act, courts
would be justified in excluding evidence collected by the KLS as not
complying with the requirements of Title III. As Konop and Fraserhave
shown, post-transmission and pre-transmission storage is easily
distinguishable.
As Konop and Fraser also note, some storage is
necessary for the electronic communication of data.
Seizure of
keystrokes typed into an e-mail program that queues messages for
subsequent transmission is analogous to the types of pre-transmission
storage necessary for electronic communications. Courts could also
163.
164.
Id.
See id.
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[Vol. 2002
redefine the beginning and ending point for transmission of electronic
communications to include the entering of data likely to be transmitted
in the immediate future.
Failing to disclose the full details of the KLS restricts a person's
right to determine if the government violated his constitutional rights.
As stated above, the government should not be allowed to use high-tech
law enforcement tools in the domestic arena if they are unwilling to
disclose their methodology. Hiding behind the smokescreen of national
security gives the government an open invitation to use any and all spy
technology on persons residing in the United States. This problem is
easily remedied by restricting law enforcement to tools with disclosed
technical details in situations when the information seized is uncertain.
Of course, the FBI could obtain a warrant that satisfies the more
stringent requirements of Title III. Disclosure of the KLS technical
details would then be unnecessary, as there could have been nothing
seized that was unwarranted.
Finally, if failing the first two recommendations posed above, courts
should apply the added particularity and minimization requirements
applicable to non-audio video surveillance, as stated in Torres. The
intrusive nature of the KLS surely requires something more than a
traditional search warrant.
VII. CONCLUSION
Once again, the courts must address what Samuel D. Warren and
Louis D. Brandeis stated so eloquently in 1890:
Recent inventions and business methods call attention to the next
step which must be taken for the protection of the person, and for
securing to the individual what Judge Cooley calls the right 'to be
let alone.'.. . [N]umerous mechanical devices threaten to make
good the prediction that 'what is whispered in the closet shall be
proclaimed from the house-tops.'
... [Tihe question whether our law will recognize and protect the
right to privacy in this and in other respects must soon come before
ou[r] courts for consideration.'65
Using the KLS pursuant to a traditional search warrant does not
adequately ensure a suspect's Fourth Amendment rights are protected. I
do not propose to ban its use completely. Instead, I merely propose that
Title III be amended to balance individual civil liberties with society's
interest in preserving law and order. In the absence of such legislation, I
propose courts should reign in the constabulary's use of these invasive
techniques, which are so carefully designed to circumvent legislative
restrictions embodied in Title III.
165.
(1890).
Samuel D. Warren & Louis D. Brandeis, The Right To Privacy,4 HARV. L. REV. 193, 195-96