NEWARK, New Jersey -- A federal judge hearing a case that could set limits on government surveillance techniques has criticized the Justice Department for refusing to reveal how its technology worked.
During a hearing Monday, U.S. District Judge Nicholas Politan said he wasn't sure whether he could accept the Justice Department's repeated assurances that its spy technology does not violate Americans' privacy rights.
"Must the court itself accept the bare-faced representation as opposed to having a hearing?" Politan asked.
The government has charged Nicodemo S. Scarfo, the son of Philadelphia's former mob boss, with masterminding a mob-linked loan-sharking operation in New Jersey.
To learn the pass phrase he used to encrypt files with the popular PGP encryption software, FBI agents obtained a search warrant and then repeatedly sneaked into Scarfo's business to plant a keystroke sniffer and monitor its results.
Norris Gelman, an attorney for Scarfo, argued that the surreptitious monitoring of his client's computer may have 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."
Ronald Wigler, an assistant U.S. Attorney who specializes in organized crime prosecutions, said details must remain secret "when dealing with special law enforcement techniques."
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, and ordered the defense to submit a follow-up brief due Wednesday morning and the Justice Department to submit its response Friday. His ruling could happen anytime thereafter.
