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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.
How exactly is that ironic? Judge upholds precident. Wow, that's an unexpected turn!
Hmmm.
Isn't that ironic?
Now that there's precident, I can start spying on John Ashcroft!
Payback Be-och!
But isn't running trojan software to monitor someone illegal by other means anyway? I mean, these overbroad "unauthorized access of a computer system" laws must be good for something.
What part of the word wire do I not understand? My keyboard is attached to my PC with a wire. Don't know about yours...
http://melbournephilosophy.com/
I think one of the main reasons we have these sorts of decisions is the fact that the average judge is so old he has no idea what a computer is or what it is being used for. To say that typing on a keyboard would not possibly be an interstate communication shows a lack of knowledge of what email is, what irc is, what instant messaging is......
It was keystroke logging. But there should be a law against that.
What good is a cake if you can't eat it too?
/sarcasm
When the federal government or a company does it, it isn't wiretapping. But if the common man does it especially to a company or the government in return it is.
If only people would realize that the depth and breadth of the hipocrisy the current powers that be employ, they would be shocked.
1) Check the keyboard connection. Remove any foreign devices and destroy them, if need be.
2) Check for any odd or suspicious processes running in the background. Kill processes that don't look right (can be very dangerous though, and impossible if it's running as another user...).
Maybe if someone had a list of known keylogger processes, it'd be fine to kill processes... Google doesn't turn up anything like that easily. If someone feels like going more in-depth into the search and finding a nice list, feel free.
Or maybe just use a password-protected laptop, that only you can use. And I mean a good, secure password.
"Your effort to remain what you are is what limits you."
Wiretaps should be any recording device attached to any device or cable that sends or recieves data. After all its a "Wire" "Tap".
If you like what I've said here, and want to read more, go to http://www.krillrblog.com
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.
does it matter if the physical hardware is local, and then transmits the data over interstate lines. Is it legal if the FBI installs a key logger, that they have to physically access? What about a video camera that doesn't transmit pictures but records them to tape. The tape is then accessed without sending the data over comunication lines or radio, is that legal?
"brxref
In Constitutional terms, this is the correct ruling. Federal laws only extend to "interstate commerce," which these days is interpreted to mean "interstate anything."
I do see the sad humor in the government's hypocrisy, given their arguments in the FBI wiretapping case. However, the real outrage here is that there is no state law which clearly prohibits the interception of electronic signals.
Remember, folks, the states are supposed to take care of their own business. It's not always convenient, but it's how the Constitution gives primary power to state governments rather than the federal one.
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:
Like an earlier poster said.
Can of worms.
So monitoring a phone line is wiretapping. What about monitoring the cord between the handset and the phone?
Same difference here. 9 times out of 10, a computer is used to communicate with another computer in the workplace, or beyond the workplace. Monitoring the connection between the keyboard and the PC is monitoring interstate communication.
Job? I don't have time to get a job! Who will sit around and bitch about being broke and unemployed then?
With keystroke logging, they can even snoop on what you post to slashdot!
First off, it looks like the FBI, -in this case-, was acting legitimately, with authority from a judge. The fact that they had only a search warrant, rather than a wiretap order, is a technicality, they could have gotten either one with probable cause (which I presume they had, since nothing has been presented to the contrary.)
However, I am concerned about the broader scope of this precedent. The earlier post and article already mentioned keylogging by everyone from jealous spouses to bosses. Do we not need to draw a line (and demand that our state legislatures do so) by enacting privacy protection for this type of scenario?
While we decry "activist judges", the fact remains that technology is quickly outpacing the laws made to cover it. Under the current strict interpretations that seem to be in vogue by the courts, laws are obsolete before they get out of their Senate committee. Someone will figure out a new way to do something that flaunts the spirit of a law without -technically- violating its letter.
Given that, it would seem that judges need to look at the intent of laws as well as their specific, strict letter. It certainly applies that "freedom of speech" applies to email and websites as well as the spoken and written word, even though such things are (obviously) not mentioned, as they didn't exist. Similarly, it would seem to me that the wiretap law is being construed quite narrowly here. The obvious intent of the law is that communication is private and protected from snooping except from legitimate law-enforcement authorities under strict court scrutiny. Bosses and spouses should, quite simply, not be allowed to monitor your communications without your explicit knowledge, consent, and full understanding of what is being snooped and when. Law enforcement agencies should not be allowed to do it except with probable cause and under court scrutiny.
It seems to me that changing the location or type of monitoring (a hardware or software keylogger rather than a traditional wiretap) still is doing exactly what this law is intended to prevent. I hope, given the judge's very narrow decision, that similar laws will be passed that protect us against similar types of snooping, from law enforcement or anyone else.
To fight the war on terror, stop being afraid.
If they use a keylogger to capture what I type into my online journal, it's not a wiretap. If they use a keylogger to capture what I type to my mother, it's boring, and sometimes profane - but probably also a wiretap.
This is a case where judges are forced to apply old rules for old tech to new tech. The original intent of the wiretap law was to prevent people from eavesdropping on conversations between two parties without appropriate judicial oversight. So is using a keylogger wiretapping? It depends.
The real answer is an updated law to reflect the updated technology. Relying on Judges to protect our rights is the sign of a lazy legislature.
paintball
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:
First off, Dr. Spock was the doctor in the US in the 1950's who wrote books on how to raise children. He might have heard the term 'stardate', and maybe even knew what it referred to. However, I doubt he will be making quotes when 'stardate 2822.3' rolls around. Having died in 1998 and all.
Now if you meant Mr. Spock, first officer of the starship USS Enterprise, also know as NCC-1701, I still doubt you are being accurate. After all why would a Vulcan find it enlightening to quote a Jedi Master? Especially one who existed long, long ago, in a galaxy far, far away.
I have to stop wasting so much time reading Slashdot. It's interfering with my crystal meth addiction.
The original intent of the wiretap law was to prevent people from eavesdropping on conversations between two parties without appropriate judicial oversight. So is using a keylogger wiretapping? It depends.
That's true, but the reason the feds are allowed such a law is because only the federal government is allowed to regulate interstate commerce. That's why the scope of this federal wiretapping law is only within the bounds of interstate communications. In this case the content of the communication is irrelevant (letters to mom not withstanding).
The real answer is an updated law to reflect the updated technology. Relying on Judges to protect our rights is the sign of a lazy legislature.
The real answer is to get your state legislature to pass easedropping laws (though I'm almost positive they already exist). I'd bet he could be still prosecuted at a state level for violating some kind of anti-bugging law. As far as relying on judges to protect our rights, you do that every single day. Lest you forget our form of government was set up as a system of checks and balances. The judges interpret the law and the legislature makes them. Really the primary defendent of your rights is the judges.
AccountKiller
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.
In case you were looking, here's the device.
Have fun with your self-styled "security experts" at work!