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Judge Upholds FBI Keyboard Sniffing
mshiltonj writes: "Wired is reporting that keyboard sniffing can be used to catch "mobsters." I feel safer already. You can read the ruling. Here's a snippet: "This case presents an interesting issue of first impression dealing with the ever-present tension between individual privacy and liberty rights and law enforcement's use of new and advanced technology to vigorously investigate criminal activity. It appears that no district court in the country has addressed a similar issue. Of course, the matter takes on added importance in light of recent events and potential national security implications." Translation: Don't deny us this tool or you'll be blamed for us not catching terrorists." See also an Infoworld article. We have several previous stories on the Scarfo case.
I'm sure others will notice this, but how exactly does the installation of the sniffer take place? Since there is no warrant, and only a court order, do the authorities have the legal backing to "break and enter" a computer to install the sniffer? Is a computer awarded the same rights as a physical place (i.e. apt, home, etc...)?.
Also, if the sniffer is sent as a trojan'd email or program, could this lead to entrapment defenses based on the enticement used in the delivery method?
"Moving through the masses like a fish through water." syrup
The FBI's argument was that because the device only intercepted intra-computer communication (i.e. from the keyboard to the CPU) and not computer to computer communications, those communications are not protected by the Wiretap statute (18 USC 2518 [cornell.edu]).
Which is kinda like saying they can put a bug directly in your phone, because then it's only recording what's going from your mouth to the microphone, not phone to phone, and thus not a wiretap.
Granted, in a computer not all keystrokes are going to be transfered over the network, but how can you, the observing FBI agent, know which are which until you look at all of them? I can't see how you could possibly avoid looking at information (like a typed email) that should be require a wiretap order.
But then again, I'm too jaded and cynical to work up much anger when the FBI makes a grab for a little more power. One day my children will wake up and find themselves in a police state where you are born free until an officer of the law says otherwise, and no one will be able to understand how it happened because they won't notice that it has.
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