The government must reveal details of a new electronic surveillance technique used in a case against an alleged mobster, a federal judge has ruled.
U.S. District Judge Nicholas Politan asked the Justice Department on Tuesday for a confidential report on a keystroke logger that the FBI claims is classified.
Politan took the extraordinary step of inviting the government to send him "in camera" information about how the surveillance device would jeopardize criminal and national security investigations, meaning defense attorneys cannot read it.
"In this new age of rapidly evolving technology, the court cannot make a determination as to the lawfulness of the government's search (without) an understanding of how the key logger device functions," Politan said in his five-page order (PDF file).
Politan asked the Justice Department for two reports due in the next few weeks.
Defense attorneys for Nicodemo S. Scarfo, the alleged mastermind of a loan shark operation in New Jersey, will have access to a general summary of how the keyboard monitor functions. They won't be given the second report about how it's been used in other investigations.
In a brief filed last Friday, the Justice Department invoked national security and said public disclosure of its surveillance technique would imperil ongoing investigations of "foreign intelligence agents" and endanger the lives of U.S. agents.
Politan has barred attorneys in the case from talking to reporters.
Scarfo allegedly used PGP to encode his confidential and incriminating business data. With a judge's approval, FBI agents repeatedly sneaked into Scarfo's business to plant a keystroke sniffer -- it could be either software or hardware -- and monitor its output.
During last Monday's hearing, Politan wondered aloud how the law should treat the keyboard tap.
Was it akin, Politan 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 around someone's home or office done with a search warrant in hand?
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 more likely to walk free. That's because wiretaps must follow strict rules -- such as minimizing information that's recorded -- that the FBI's technique didn't.
Politan said said the government's sealed brief should explain "the security concerns which would arise if the key logger technology is disclosed publicly" and include any "testimonial evidence it deems necessary."
That brief is due in 10 working days, and the report that will go to defense attorneys as well is due Aug. 31.
Politan said after reading the government's arguments, he will decide how long the defense has to reply and whether another hearing is necessary.
"The United States has, as of yet, not identified specifically any security issues which would militate against disclosure of this technologically advanced search technique," Politan said.
Dozens of keystroke logging devices exist in the marketplace, but the FBI says they developed their system internally.
