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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."
Hmmm.
Isn't that ironic?
Now that there's precident, I can start spying on John Ashcroft!
Payback Be-och!
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.
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.
It's ironic because the feds want to prosecute this guy, but their previous power grab backfired on them.
They argued in a previous case that a keylogger was not a wiretap and thus did not require a warrent, now they're trying to argue the other way around when it suits them - but the judge used their previous arguments against them.
Irony and poetic justice at once, really. But does anyone else think it should be the other way? That is, that it should be considered a wiretap when done by either FBI or private citizen, and regulated accordingly? I don't think people should be snooping on other people's computers any more than the FBI...
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:
You missed the point of the article entirely.
... his conduct did not violate the Wiretap Act. While this may be unfortunate, only Congress can cover bases untouched."
The federal law makes wiretapping an interstate transmission illegal. What you type on your keyboard and gets sent to your computer is not going to be an interstate transmission.
If the wiretapping device had been between say, the computer and router - than the wiretap act may have been properly invoked.
So you criticize the judge without reading the article or understanding the issue at hand. The judge may be old but he's certainly clever, understands computers, and picked up subtleties which you didn't even know existed.
Yes there are clueless judges. Doesn't look like this is one of them.
Score one for the old guys.
From the article:
But district court judge Gary Feess disagreed, and last month granted a defense motion to dismiss the indictment. Feess ruled that the interception of keystrokes between the keyboard and the computer's CPU did not meet the "interstate or foreign commerce" clause in the federal Wiretap Act, even if some of those keystrokes were banging out e-mail. "[T]his court finds it difficult to conclude that the acquisition of internal computer signals that constitute part of the process of preparing a message for transmission would violate the Act."
"The network connection is irrelevant to the transmissions, which could have been made on a stand-alone computer that had no link at all to the internet or any other external network," Feess wrote. "Thus, although defendant engaged in a gross invasion of privacy
The federal law makes wiretapping an interstate transmission illegal. What you type on your keyboard and gets sent to your computer is not going to be an interstate transmission.
You know, when I make a phone call, it goes from my phone line to the local switch. Then it goes from the local switch to a regional switch. Maybe it makes its way to an interstate line. Who knows? It depends what number I call. But the signal that goes between my house and the local switch, well, that doesn't cross state lines, right?
So if you tap the phone line from my house to the local switch, the signal you are tapping never crosses state lines. Therefore a federal agency can tap my phone line with impunity.
See, the network connection is irrelevant to the transmissions, which could have been made on a stand-alone phone with no link at all the a long-distance network. Therefore no local phone taps violate the Wiretap Act.
Right?
After all, as defined in the Act, ''electronic communication'' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce. It's crystal clear.
I have a positive modifier on Troll. When I mod someone Troll their karma should go UP!
Ironically, the government is prosecuting a case to protect a citizen's privacy!
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