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Federal Judge: Keystroke Logging Isn't Wiretapping
TospenJ writes "A federal judge in Los Angeles has dismissed wiretapping charges against a California man who used a hardware keystroke logger to spy on his employer, SecurityFocus is reporting. The court ruled that the device doesn't violate the federal Wiretap Act because it only intercepted signals off a keyboard cable, not an interstate network. The government is asking for reconsideration. Ironically, the judge relied in part on the Scarfo precedent, which allowed the FBI to use such a keylogger without a wiretap warrant."
Either it's a wiretap or it's not.
Heads the prosecutors win and the FBI loses.
Tails the prosecutors lose and the FBI wins.
Looks like tails.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
If keystroke logging isn't wiretapping, maybe this opens a whole can of worms whereby spyware becomes legal. And if software that sits on my machine without my knowledge relaying my credit card information to a teenager in a foreign country can't be considered wiretapping -- or if the same standard is applied to spyware purveyors as to government agents -- then there's something screwy in the law that needs to be fixed.
I think spyware needs to be stopped now. And I don't think that the ability to conduct legitimate investigation should be confused in the law with some guy allegedly spying on his employer. Two different things that need to be handled two different ways.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
A government institution (the FBI) sets precedent by getting away with logging keystrokes.
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The prosecution of a man for illegally wiretapping a keyboard fails because the government had gotten away from it before.
=
An unexpected turn / irony
You're incorrect spelling of precedent, however, is not unexpected turn, and therefore not ironic.
That won't make you entirely safe. If someone has physical access to the keyboard or computer, it's not difficult to install the keylogger inside either. And keyboards often use common microcontrollers: my Logitech Internet Navigator, for example, uses the 68HC08JB8. It could be possible to replace the microcontroller with one that has altered firmware, to log keystrokes pretty much invisibly. Build in a long passphrase to trigger dumping the logged keystrokes, and you're in business.
This ruling appears pretty straightforward, after all a keyboard cable barely reaches 5 feet much less across state lines. However, when you realize that the standard in question was simply 'affecting interstate or foreign commerce' the result is much more significant. Especially considering the very broad interpratation of this clause in the past.
If this ruling is upheld it could have some very interesting consequences relating to governmental power. In general the federal government only has the power to legislate things which affect interstate commerce (plus a bunch of other exception...which we won't consider here). For instance if it was determined that a TiVO does not affect interstate/foriegn commerce the FCC would not have the ability to foist broadcast flags or other copyright protection mechanisms. Similar problems would occur with any attempt to federally regulate copyright protection into the PC.
Surely, one would think that protecting copyright would affect interstate commerce (whether this is effective or not is an entierly seperate matter). However, this misses the true significance of this ruling. Despite the fact that some of the keystrokes were sent in interstate email he still apparently considered the keyboard itself not to be affecting interstate commerce. For this not to be considered interstate commerce suggests a much stricter/direct standard is being applied.
Perhaps I am misinterpreting the standard involved. The article wasn't very precisce and perhaps the federal wiretap act actually requires the *communication itself* to be interstate. However, I think this is unlikely as I believe it also covers *in state* wire taps. Although, even if I am correct I imagine this will be reversed on appeal. This is simply a far too drastic change in understanding of what it means to affect interstate commerce.
If you liked this thought maybe you would find my blog nice too:
we have a term for this, its called fascism.
we have a document that is supposed to protect the people of this nation from govt overreaching. its called the constitution.
However in the current world of neo-con spinmasters, anyone that doesn't go their way is an 'activist judge'. its the typical vilify your antagonist as a method to distract the people from the complex underlying issues.
For a few dollar more i can install a slippery slope for you.
If you're using a windows based system, check the following page:
:( )
http://www.sysinfo.org/startuplist.php
This has nearly all possible programs that can run during startup on a windows machine, and explains what it is. (Regular proces, virus, trojan, etc..)
I use it whenever I encounter an unknown process in the task list.
(It's getting more difficult though... my company installed laptop (illegal to change anything on it), runs nearly 50 processes after a clean startup
Quite.
I was beginning to think I was the only person to agree with the judge. But it's true. a keyboard logger isn't a wiretap. If it was connected to a network (even a LAN if it was connected to the internet) I'd see it as appropriate, but logging keystrokes is simply too far removed from actually sending that information across a network.
Presumably, the wiretap legislation also doesn't apply to pointing a spy camera at the user's screen, or a bug in a room with a telephone in either. It's not quite clear why congress felt that intercepting communications in transit should be treated differently from other forms of spying on people, but presumably they had a good reason, and it's not up to the judge to speculate on those reasons.
Yes, congress is specifically given the right to set up an institution of copyright. If you had cared to read my post I never suggested that copyright law would be thereby overturned. However, nothing in the text of the copyright clause in the constitution appears to give congress any power to regulate devices which might circumvent copyright. Unless you actually have historical precident which suggests the courts have interpreted this clause not only to give congress the power to create copyright but also regulate any technology allowing infringment this is simply a silly objection.
Perhaps the point of the initial point went over your head, or you buzzed in to correct me before you had time to think about it so let me explain again. As I understand congress has no constitutional authority to regulate things like broadcast flags, or TiVOs except through the power of the commerce clause. If things like keyboard-computer communication, without which much of the modern computer age would be impossible, is deemed not to affect interstate commerce in the relevant way then it seems likely that other indirect effects like time-shifting would not be regarded as affecting interstate commerce either.
Quite likely either I or the original article is making a mistake here. If anyone has a good explanation for what I am missing I would love to hear. However, if you are going to be a dick about it you might want to make sure you know what you are talking about first. If the current poster actually has reason to believe the copyright clause in the constitution is interpreted broadly how about actually sharing your information instead of lording it over us.
If you liked this thought maybe you would find my blog nice too:
Well, but if you apply the same reasoning to telephones, you should be able to wiretap any phone as long as the wire is between the actual telephone and the first switch. After all, any information through that wire will only go from the switch to the phone and vise versa. It won't be transmitted directly either - it will be digitized, encoded, stored in packets and embedded in T1 and SDH frames.
Not that this has anything to do with whats going on... but the moment they were handed guns and given special powers over civilians. That is the instant they are not civilians... Lets be honest now, our police is no different than the military it might as well be a branch and we should dispense with any notions that the police shouldn't be held to a higher standard than "civilians".
Again not that this has anything to do with this but... a cop getting caught for the same crime as a civilian should immediately be forced to serve double the sentence. After all they have a greater responsibility to uphold the law than normal civilians do.