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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."
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 the hell are you talking about?
The judge ruled the man didn't break any laws. It's not wire-tapping for the FBI, and it's not wire-tapping for civilians.
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."
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.
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?
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