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."

Comments

Correct ruling

[bobhagopian]

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.

Re:Fossils on the Bench

[trolluscressida]

You missed the point of the article entirely.

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 ... his conduct did not violate the Wiretap Act. While this may be unfortunate, only Congress can cover bases untouched."

Problems on both sides

[laughingcoyote]

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.