NEWARK, New Jersey -- Nicodemo S. Scarfo is not merely an affable computer aficionado, the son of Philadelphia's former mob boss and an alleged mastermind of a loan shark operation in New Jersey.
He's also the defendant in a case that could -- depending on how a federal judge rules in the next few weeks -- dramatically expand the government's powers to spy on Americans or restrict police to traditional techniques.
To hear federal prosecutors tell it, the FBI became so frustrated by Scarfo's use of Pretty Good Privacy software (PGP) to encode confidential business data that they had to resort to extraordinary means. With a judge's approval, FBI agents repeatedly snuck into Scarfo's business to plant a keystroke sniffer and monitor its output.
On Monday, prosecutors and defense attorneys gathered in Newark's federal courthouse -- an oasis of modern design and skylight-punctuated ceilings surrounded by decaying tenements -- to wrangle over whether such an unusual investigative technique violates privacy rights.
U.S. District Judge Nicholas Politan saved his sharpest needling for the assistant U.S. attorney prosecuting the case, asking how a court could accept the government's earnest assurances that its spy technology is permitted by federal law and the Bill of Rights.
"Must the court itself accept the bare-faced representation as opposed to having a hearing?" Politan asked.
Politan seemed visibly unsettled by how the law should treat the typing-tap and ordered both sides to submit additional briefs by Friday.
Was it akin, he wondered, to a telephone wiretap, regulated by the federal law known as Title III? Perhaps it was a general search of the sort loathed by the colonists at the time of the American Revolution and thereafter outlawed by the Fourth Amendment? Or was it, as the government argued, just like cops rummaging in someone's home or office with a search warrant in hand?
Politan acknowledged that the keyboard recorder "looks like a wiretap, but it's not."
The difference is crucial: If Politan rules that the FBI's keystroke monitor is a wiretap, the evidence may have to be discarded and Scarfo would be far more likely to walk free. That's because wiretaps must follow stricter rules -- such as minimizing information that's recorded -- than the FBI followed.
Complicating the case is the government's unwillingness to release details on how the keystroke-capturing system works. The government calls the key-logger "a sensitive law enforcement that is privileged" -- and that its details may be kept from defendants, like the secret locations of bugs and surveillance devices.
"It's critical that the details of this technique be made public and be subject to a determination of its legality," says David Sobel, general counsel for the Electronic Privacy Information Center. "What the government is arguing is that it should have the right to surreptitiously install monitoring devices on computers without any obligation to explain what that device does."
For their part, the Feds believe so strongly in keeping this information secret that they've hinted they may invoke the Classified Information Procedures Act (CIPA) if necessary. That 1980 law says that the government may say that evidence requires "protection against unauthorized disclosure for reasons of national security."
If that happens, not only will observers be barred from the courtroom, but the trial could move to a classified location. Federal security procedures say that if a courtroom is not sufficiently secure, "the court shall designate the facilities of another United States Government agency" as the location for the trial.
Prosecutors said in court documents that while they haven't yet invoked those security provisions, "the United States reserves the right, however, at some later date to re-assert all CIPA issues." (The judge has already imposed a gag order on attorneys in this case.)
That's mildly puzzling for one very good reason: Spyware is hardly secret stuff.
Google features a category called "Keyloggers and Spyware," and dozens of commercial applications are available. Any competent Windows programmer could create such a program in a day or two -- and, in fact, since Windows 95 and 98 and MacOS have security restrictions that aren't exactly water tight, they're ideal platforms to target.
That didn't stop Ronald Wigler, an assistant U.S. attorney who specializes in organized crime prosecutions, from insisting that details must remain secret "when dealing with special law enforcement techniques."
"The government did nothing improper in this case," Wigler said Monday. "There was no violation in terms of a general warrant.... This was not wholesale rummaging."
Mark Rasch, a former Justice Department attorney now at Predictive Systems in Reston, Virginia, said he believed details should be revealed.
"You've got to know what it's doing to know what the Fourth Amendment implications are," Rasch said. "It may actually be perfectly valid and appropriate. It may actually minimize (appropriately). You don't know until you know what it does."
About the only clue to what kind of key logger was used -- it could be a physical bug hidden in a keyboard or software that runs in the background -- comes from a 24-page list of Scarfo's alleged keystrokes introduced as evidence as Exhibit I.
"There's nothing from the output to show or even suggest that any transmission is taking place," Wigler argued, saying that if there was no transmission, it could not be a wiretap covered by Title III.
He said, for instance, that a typing recorder could clearly be used on a computer without a network connection.
But Scarfo's computer did have a modem, and he did connect to the Internet. And his defense attorneys argued that telephone logs show that their client logged on about once a day.
"We should get a report from someone in the FBI's unit regarding what was done, how it was done, and what process was used," said Vincent Scoca of Bloomfield, New Jersey, who is representing Scarfo.
He said that Dave Farber, a professor of engineering at the University of Pennsylvania and board member of the Electronic Frontier Foundation, would be testifying as a technical expert on behalf of the defense.
Judge Politan may not have been persuaded by the government's arguments but he didn't seem terribly happy with the defense's position either.
He wondered what would be the problem if prosecutors said, "We swear under oath we never touched the modem."
"How does that different from a warrant for 122 West Market Street looking for drug paraphernalia?" Politan asked. "Isn't this parallel to that?"
Norris Gelman, an attorney for Scarfo, replied: "The invasion of privacy is far more than a couple of hours the police could spend rummaging around."
Gelman argued that the surreptitious monitoring violated federal wiretap laws and the Fourth Amendment, which requires a precise list of "things to be seized."
"You say you did not abridge Title III (wiretap law)," Gelman said. "We want to know how it was that you can make that statement."
At one point, Judge Politan complained that there was too much media interest in this case. He said Saturday that he was surprised to see it mentioned "when I was sipping a martini and watching the news on CBS."
Politan warned both sets of attorneys not to talk to the media and said, "If I were Sherlock Holmes, I'd find out" who the blabbermouth was.
Politan convened the hearing to rule on defense motions to toss out the search for the pass phrase -- which allowed investigators to unlock some allegedly incriminating files -- and to learn more about the technology.
He said he wanted more background on some of the details. He ordered the defense to submit a follow-up brief by Wednesday morning and for the Justice Department to submit its response Friday. His ruling could happen anytime thereafter.
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