posted Dec 06, 2000

FBI Hacks Alleged Mobster
Surveillance and Privacy from Government
12/6/2000; 3:25:47 PM

'But when the feds learned of Scarfo's security measures, they decided to do something that would bypass even the best encryption software: FBI agents sneaked into Scarfo's office in Belleville, New Jersey, on May 10, 1999, and installed a keyboard-sniffing device to record his password when he typed it in.

'A seven-page court order authorized the FBI and cooperating local police to break into Scarfo's first-floor "Merchant Services of Essex County" office as many times as necessary to deploy, maintain, and then remove "recovery methods which will capture the necessary key-related information and encrypted files."'

This sort of thing will have to happen eventually. The questions is, was due process followed? Can the judge give this sort of permission? Did the judge just do a knee-jerk without really understanding the technical implications?

'EPIC's Sobel suggested that Haneke did not, under federal law, have the authority to grant such an order. "The interesting issue is that they in those (court) documents specifically disclaim any reliance on the wiretap statute," Sobel says. "If they're on record saying this isn't communications -- and it isn't -- then that extraordinary authority they have under the wiretap laws does not apply."'

This is probably correct. Legally speaking, computers don't exist. Communication occurs between people. (This is an odd case where the lawyers are more right about something then many technical people, who forget that you can't really communicate with a computer.) By tapping the line between a user and the computer, the FBI will get a lot more then just communication with other humans.  Saying they wanted the password is a really borderline case; they may need it to decrypt other communications, but does that mean that that is "communication"? A balanced answer to this will need to emerge, and it's a pity we can't expect one of those anytime soon...


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