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[9]Archives [10]Black History [11]Campaign 2000 [12]Chats [13]Comics [14]The Daily News [15]Death notices [16]Flower Show [17]Food (Cooking Show) [18]Freebies [19]Games [20]Horoscope [21]Kids (Headbone Zone) [22]Law [23]Lottery [24]Miss America 2K [25]Personals [26]Restaurants [27]Travel Planner [28]TV listings [29]Weddings [30]Zoo [31]Education Guide [32]More [1ptrans.gif] [33][inquirer32.gif] [search_today.gif]-Submit _________ [1ptrans.gif] [front_page.gif] Monday, December 4, 2000 Go to: [34]S [35]M [36]T [37]W [38]T [39]F [40]S [1ptrans.gif] [41]E-mail the story | [42]Plain-text for printing Scarfo case could test cyber-spying tactic The FBI put a keystroke-logging device on the computer of the gambling suspect. A challenge may create new law. By George Anastasia INQUIRER STAFF WRITER A federal gambling case against the son of jailed mob boss Nicodemo "Little Nicky" Scarfo could instead be the first legal test of cutting-edge cyber-surveillance technology that some critics of federal investigations say borders on Big Brotherism. Court records in the pending case indicate that Nicodemo S. Scarfo, 35, was the target of a sophisticated surveillance tool - a so-called keystroke-logging device - that allowed the FBI to reproduce every stroke he entered on a computer on which gambling records allegedly were stored. Scarfo subsequently was charged with supervising a mob-linked bookmaking and loan-sharking operation in North Jersey. Questions about the FBI's spying methods in the Scarfo investigation surface at a time when defense lawyers and civil libertarians have begun to ask how far federal authorities should be permitted to go with electronic surveillance. Critics say that technology is evolving faster than the laws governing privacy rights and that federal investigators, emboldened by the capabilities of their cyber-tools, frequently disregard constitutional guarantees. "Anything he typed on that keyboard - a letter to his lawyer, personal or medical records, legitimate business records - they got it all," said Donald Manno, Scarfo's longtime lawyer. "That's scary. It's dangerous," he said. Said Alan Hart, a former IRS agent and private investigator who teaches criminal justice at Burlington County College: "This doesn't 'smack' of Big Brotherism, it hits you over the head like a baseball bat." Hart, after hearing a description of the capabilities of a keystroke recorder, called it "Orwellian." "It's another example of the FBI taking technology to its limits and possibly over the line of what's legally permissible," said David Sobel, general counsel for the Electronic Privacy Information Center, a Washington nonprofit research group that focuses on Internet- and computer-privacy issues. The FBI would not comment. Assistant U.S. Attorney Ronald D. Wigler, the prosecutor in the case, said only that he expected the FBI's surveillance methods would be challenged in a pretrial defense motion and that arguments could establish new case law. "I can't talk about any of it," he said, "but I think it's correct to say this is [a] cutting-edge [legal issue]." Manno contends that federal investigators improperly used a search warrant as authorization to install a keystroke recorder on Scarfo's business computer in the spring of 1999. By monitoring the keyboard during May and June, investigators were able to determine the code and password Scarfo used to access an encrypted program in which, authorities suspected, he was storing gambling and loan-sharking records. Manno said that he was preparing a motion challenging the legality of the surveillance when he was disqualified from the case in October. Manno was barred because in the past he represented a client who is expected to testify for the government against Scarfo. He said he expected the challenge to the surveillance will be raised by whomever Scarfo hires to replace him. "I don't think there is any case law on this issue, and I hope the fact that it's a so-called organized crime investigation doesn't detract from the fundamental and overriding concern here, which is an individual's right to privacy," Manno said last week. Sobel, who has tracked similar issues for the privacy-information center, said techniques used in the Scarfo investigation raised many of the same privacy concerns that he and others have raised over another of the FBI's surveillance tools, the e-mail monitoring device known as Carnivore. The Carnivore system, which also has attracted congressional critics, allows investigators to monitor e-mail messages sent to or by a targeted individual. The Scarfo case, he said, is the first in which he has seen references to the use of the keystroke recorder. "Like Carnivore, this is the FBI using investigative technology that goes beyond existing law," he said. Wiretap laws, for example, regulate how and when phone lines and rooms can be "bugged." But those laws, aimed at the electronic interception of oral communication, do not speak to the new technology. A wiretap or room bug also would have required authorization from the Attorney General's Office as well as court approval, defense lawyers say. And it would have required investigators to "minimize" - not record or listen to - conversations unrelated to the focus of the investigation. In the Scarfo case, the FBI used general search warrants authorized by Magistrate G. Donald Haneke to break into a business office in Belleville, Essex County, to plant a keystroke recorder. Investigators believed that Scarfo and an associate were using the business, Merchants Services, which leases machines, software and other equipment for credit-card processing, as a front for a bookmaking and loan-sharking operation. The application for the authorization, submitted by Wigler, contended that as "there will be no wire, oral or electronic communications captured," federal wiretap laws did not apply. The court order, however, did authorize the FBI to "install and leave behind software, firmware, and/or hardware equipment which will monitor the inputted data entered on Nicodemo S. Scarfo's computer by recording the key-related information as they are entered." Authorities would not describe which types of devices were used in the investigation. "It's not something we would want to comment on," said Sandy Carroll, a spokeswoman for the FBI in Newark. Experts in electronic surveillance said there are at least three types of keystroke-logging devices. There is software that can be loaded onto a computer. There is an attachment that can be linked to the port where the keyboard line enters the computer. And there is a "bug" that can be put inside the keyboard. The bug is the most effective and least likely to be discovered, said James Atkinson, head of Granite Island Group, a private electronic security and surveillance firm in Gloucester, Mass. The device, Atkinson said, is about the size of a sugar cube. "It weighs a few grams, and unless you . . . routinely weighed your keyboard, you'd never notice," he said. Battery-powered and able to recharge itself off the computer, a good keystroke-logging device can store up to 32 million keystrokes, Atkinson said. Typically, information from the device would be downloaded from a remote location, he said, and the downloading process could take seconds to minutes. The result would be a "mirror" of whatever was tapped into the keyboard. According to court documents, the FBI resorted to the keystroke-logging device after it was frustrated in an attempt to obtain gambling records from a Scarfo computer. Agents first seized a computer from Scarfo's business in January 1999 but were unable to get access to one of the programs in which they suspected gambling records were stored because it was encrypted. Unlike many of his mob contemporaries, Scarfo is computer-literate - Manno calls him a "geek." He once worked for a Florida software company. In 1989, when he was wounded in a gangland shooting in South Philadelphia, he was carrying a laptop computer that police said contained extortion records. In the current case, investigators obtained court authorization for break-ins at Scarfo's business office in May and June and, at some point, planted the keystroke recorder. Later in June, the FBI raided the office, arrested Scarfo and his associate, and seized the computer. Scarfo was allegedly supervising part of a $5-million-a-year mob bookmaking operation with ties to the Gambino crime family, according to court records. His trial, originally scheduled for this month, has been delayed at least until he finds a new lawyer. Manno would not discuss what his client was storing on the encrypted program but said Scarfo was using software known as PGP. "It stands for Pretty Good Privacy," the lawyer said with a chuckle. _________________________________________________________________ George Anastasia's e-mail address is ganastasia@phillynews.com _________________________________________________________________ [1ptrans.gif] References 1. http://www.philly.com/ 2. http://www.philly.com/ 3. http://entertainment.philly.com/everstream/ 4. http://sports.philly.com/phillies 5. http://sports.philly.com/eagles 6. http://sports.philly.com/flyers 7. http://sports.philly.com/sixers 8. http://money.philly.com/ 9. http://www.philly.com/newslibrary/ 10. http://www.philly.com/packages/history/ 11. http://philadelphia.realcities.com/rc/elections/ 12. http://chat.philly.com/ 13. http://www.phillynews.com/comics 14. http://web.philly.com/content/daily_news/today/local/ 15. http://classifieds.phillynews.com/death.asp 16. http://www.philly.com/packages/flowershow/ 17. http://cooking.phillynews.com/ 18. http://entertainment.philly.com/freebies/ 19. http://philly.funplanet.com/ 20. http://www.phillynews.com/pdn/features/HORO$$.htm 21. http://hbz.phillynews.com/ 22. http://law.philly.com/ 23. http://entertainment.philly.com/lottery 24. http://www.philly.com/photo/inq/miss/index.html 25. http://classifieds.phillynews.com/personal.asp 26. http://entertainment.philly.com/dining/ 27. http://travel.philly.com/ 28. http://www.tmstv.com/cgi-bin/tvcgi.phi 29. http://www.phillynews.com/weddings/ 30. http://primatereserve.philly.com/ 31. http://education.philly.com/specials/2000/guide/ 32. http://www.philly.com/contents/ 33. http://inq.philly.com/content/inquirer/home/ 34. http://inq.philly.com/content/inquirer/Sun/front_page/ 35. http://inq.philly.com/content/inquirer/Mon/front_page/ 36. http://inq.philly.com/content/inquirer/Tue/front_page/ 37. http://inq.philly.com/content/inquirer/Wed/front_page/ 38. http://inq.philly.com/content/inquirer/Thu/front_page/ 39. http://inq.philly.com/content/inquirer/Fri/front_page/ 40. http://inq.philly.com/content/inquirer/Sat/front_page/ 41. http://inq.philly.com/content/inquirer/2000/12/04/front_page/JMOB04.htm?template=aemail.htm 42. http://inq.philly.com/content/inquirer/2000/12/04/front_page/JMOB04.htm?template=aprint.htm