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Monday, December 4, 2000 Go to: [34]S [35]M [36]T [37]W [38]T [39]F
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[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
_________________________________________________________________
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