Federal prosecutors have asked a judge to drape a curtain of secrecy around a case involving electronic surveillance of an alleged mobster. Its classified eavesdropping technology is so sensitive, the U.S. government claims, that "national security" will be at risk if details are revealed to the public or defense attorneys for Nicodemo S. Scarfo, the alleged mastermind of a loan shark operation in New Jersey.
Justice Department attorneys have gone so far as to invoke the 1980 Classified Information Procedures Act, a little-used federal law usually reserved for espionage cases, in a 13-page filing (PDF) last week with U.S. District Judge Nicholas Politan.
When invoked, CIPA permits federal prosecutors to take extraordinary steps to protect classified information, including barring observers from the courtroom, withholding documents from the defense attorneys and moving the trial to "the facilities of another United States government agency" if the courthouse is not secure enough.
Prosecutors said they wanted to file two reports: An unclassified summary of the "keystroke logger" the FBI used to eavesdrop on Scarfo and learn his pass phrase, and a classified document that only Politan would read that provides details. They said they also wanted Scarfo's defense counsel to be barred from releasing the summary to the public or press.
Previously, in an Aug. 8 order (PDF), Politan had told the government to provide first a private report about how providing details about the keystroke logger could "jeopardize both ongoing and future criminal and national security operations." He also asked for a subsequent public report describing the technique.
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.
Using that method, the FBI was able to obtain Scarfo's PGP pass phrase and decrypt documents that the government says are incriminating. Dozens of keystroke logging devices exist in the marketplace, but the FBI says it developed this system internally.
"CIPA was never intended for garden-variety criminal proceedings, but only those unusual national security cases, like espionage prosecutions, where classified information was likely to be relevant," says David Sobel, general counsel to the Electronic Privacy Information Center in Washington.
"The government's position in this case seems to be that whenever encrypted data is encountered, the use of 'secret' investigative techniques will require the invocation of CIPA," Sobel says. "Given the growing use of encryption, that's potentially a very frightening development."
Under Politan's gag order, neither prosecutors or defense attorneys are permitted to speak with reporters.
During a hearing in Newark last month, 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 be 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.
CIPA says that a federal judge may authorize prosecutors "to substitute a summary of the information for such classified documents" when national security is at risk.
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Judge Wants Keyboard Logger Info
Judge Wants Keyboard Logger Info
Judge to DOJ: Explain Spy Method
Judge to DOJ: Explain Spy Method
