Privacy and Related Issues

Writer jailed over research to be freed

FBI wants to keep Digital Snooping Secret

Judge Okays keystroke Surveillance

'Patriot Act' opens ISPs to Monitoring

Writer Jailed Over Research Is to Be Freed


HOUSTON, Jan. 3 A novice crime writer who has been jailed for more than five months for refusing to surrender her notes to a grand jury will be released on Friday, her lawyer said today.

The writer, Vanessa Leggett, 33, is to be freed from a federal detention center in Houston because the grand jury that had demanded all her research for a book on a killing has ended its investigation of the victim's husband, said Ms. Leggett's lawyer, Mike DeGeurin.

Kesha Handy, a spokeswoman for the United States attorney's office for the Southern District of Texas confirmed that Ms. Leggett would be released on Friday.

Ms. Leggett was jailed on contempt charges on July 20 after refusing to hand over her research.

Federal prosecutors contend that she is not a journalist and therefore does not fall under the First Amendment's protection of the press.

Ms. Leggett has never published a book or news article; her previous writings have appeared in academic journals.

In an effort to protect herself from being jailed again over her research, Ms. Leggett will continue her appeal of an appellate court decision that upheld her incarceration, Mr. DeGeurin said.

Federal prosecutors have indicated that they will renew their request for Ms. Leggett's material, he said.

The Supreme Court has not yet decided whether it will review Ms. Leggett's case.

Ms. Leggett attracted attention from federal agents investigating Robert Angleton, a millionaire and former bookmaker whose wife, Doris, was shot to death in 1997.

Ms. Leggett had interviewed many people involved in the case, including Mr. Angleton's brother Roger, who was also charged in the killing and committed suicide in jail.

(reprinted from NY Times 1/4/02)


FBI Wants to Keep Digital Snooping Secret

 Keystroke-recorder used in mob case is a matter of national security, government says

George A. Chidi Jr., IDG News Service

Monday, August 27, 2001

Federal prosecutors want to keep their keystroke-tracking methods secret, claiming the PC bugging tactic is protected under Classified Information Protection Act.

The issue has risen in the criminal trial of an accused Mafia loan shark, but privacy advocates say the precedent could set standards for PC "wiretapping."

U.S. District Court Judge Nicholas H. Politan has granted the government's motion to keep secret--for now--the technical details of a computer keystroke logging tool. The judge will privately review a detailed description of the device, without revealing it to the defense. He will consider the government's claim that national security would be at risk if the method's details become public. If Politan decides the government's national security claim is valid, then the defense--and the public--will see only a limited description of the key logger system's inner workings.

FBI agents acting with a warrant surreptitiously broke into the office of Nicodemo S. Scarfo Jr.'s in May 1999 to plant a keystroke logging device on his PC. In an earlier raid on the office, FBI computer experts found one encrypted file they could not break. The keystroke logger enabled agents to record the file's password as Scarfo typed.

"There's a lot about the technology used by the FBI that could be publicly discussed, and deserves to be publicly discussed," says James Dempsey, deputy director for the Center for Democracy and Technology, an advocacy group. "This is a hugely important case, because the government says if it can't get what it wants by other means, it will break into your house and plant a device that records everything you type until it gets what it wants."

Racketeering Charged

The U.S. Department of Justice, working with the FBI, charged Scarfo with racketeering, illegal gambling, and loan sharking as a member of what they call a Mafia crime family. Scarfo's father is jailed mob boss Nicodemo S. "Little Nicky" Scarfo Sr.

The warrant specifically required that the key logger device not be used to monitor Scarfo's Internet traffic, because tracking a user's surfing requires a warrant equivalent to one for a wiretap. The defense has argued that it cannot determine if the technology violates the warrant, because the government won't reveal information about the program.

Prosecutors contend that if details of the key logger system are made public, it will be useless in further investigations and will jeopardize current ones.

Lawyers on the case are under a gag order, and cannot comment to the media about the trial.

High-Tech Snooping

The Scarfo case raises new issues for privacy, but not all have to do with emerging technology, Dempsey says.

"The troubling thing is the lack of notice," he says. "Here, they had a Fourth Amendment warrant ... but they didn't issue notice for the search. In the Scarfo case, and a growing number of cases, the government is claiming it can dispense with the notice requirement and can come into your house secretly, plant things, take pictures, copy things, and leave without telling you. That is a huge attack on the Fourth Amendment."

The key logger system illustrates the increasing role of technology in government surveillance, and the increasing gap between the pace of the law and the advance of science. Another prominent electronic-surveillance issue involves Carnivore, now renamed the more public relations-friendly DCS1000 surveillance system.

Carnivore allows law enforcement agents to intercept e-mail, ostensibly sifting through public electronic transmissions to get to the target's correspondence. The system raises privacy concerns because it isn't clear if Carnivore prevents agents from capturing e-mail beyond the target of a warrant.

(reprinted from PC World)


Judge Okays Keystroke Surveillance

FBI's use of keystroke capture tool was permitted for investigation, court says

George A. Chidi Jr., IDG News Service

Friday, January 04, 2002

A federal judge in New Jersey has rejected a defense motion to suppress computer evidence gained in an FBI case against an accused Mafia loan shark, possibly clearing a path for the government to use secretly installed keystroke logging tools to defeat encryption.

FBI agents acting with a warrant in May 1999 installed a keystroke logging device on the computer of Nicodemo S. Scarfo Jr., hoping to record a password for a file encrypted with PGP (Pretty Good Privacy) software. Scarfo's attorneys hoped to suppress the evidence as unconstitutional, a violation of the U.S. Constitution's Fourth Amendment protection against unreasonable search and seizure. The defense also objected to the government's effort to keep the workings of the keystroke logger secret.

Federal prosecutors call Scarfo a mobster--Scarfo's father is jailed mob boss Nicodemo S. "Little Nicky" Scarfo Sr. The DOJ charged the younger Scarfo with racketeering, illegal gambling, and loan sharking.

Prosecutors invoked the Classified Information Protection Act in August of 2000, asserting that the technical details of the computer keystroke logging tool must remain a secret in the interest of national security, a move more typically associated with protecting military or espionage secrets like those involved in the Wen Ho Lee nuclear secrets case or the spy case of Robert Hanssen, who was an FBI agent.

Was Access Limited?

The warrant permitting the keystroke logger to be installed specifically prohibited the government from monitoring Scarfo's Internet communication. Scarfo's attorneys claimed that by keeping details of the logger's mechanisms secret, the defense could not determine if the warrant had been breached.

"We didn't capture any kind of electronic communications," said Ronald Wigler, an assistant U.S. attorney for the New Jersey district. While the judge received a classified briefing on the workings of the keystroke logger, he concluded based on unclassified parts of the briefing that no communication interception occurred, Wigler said.

U.S. District Court Judge Nicholas H. Politan rejected defense arguments in his ruling, indicating that the summary description of the keystroke logger made public in court meets the defendant's need to know what facts or documents the prosecutors are likely to use at trial to make their case.

Caution Urged

"We must be ever vigilant against the evisceration of Constitutional rights at the hands of modern technology," Politan wrote in the ruling. "Yet, at the same time, it is likewise true that modern-day criminals have also embraced technological advances and used them to further their felonious purposes."

Scarfo's attorneys plan to file a motion asking the judge to reconsider.

"The government's philosophy is that you shall have no secrets that they cannot reach, and I think that is a chilling philosophy," said Norris Gelman, a Scarfo defense lawyer in Philadelphia.

Privacy advocates objected to the nature of the government's intrusion into Scarfo's office--done secretly with no notice to the target until long after.

(reprinted from PC World)


'Patriot Act' Opens ISPs to Monitoring

 Carnivore, other tools start monitoring network activity under new rules

George A. Chidi Jr., IDG News Service

Monday, November 05, 2001

Under the newly enacted Patriot Act of 2001, ISPs and network administrators may give law enforcement agents access to their networks without a warrant in order to track hacker activities.

The legislation is known as the Patriot (Provide Appropriate Tools Required to Intercept and Obstruct Terrorism) Act. It expands the government's ability to monitor communications, including e-mail and cell phone conversations, and share that information among agencies. Its aim is to "provide law enforcement agencies with the appropriate tools to prevent" terrorism like that which occurred on September 11, with the attack on the Pentagon and World Trade Center, according to F. James Sensenbrenner, Jr. (R-Wisconsin), chair of the House Judiciary committee.

Now, law enforcement may not compel an ISP to grant access without a warrant. Under previous law designed to protect user privacy, ISPs were specifically forbidden to grant network access without customer permission or a judge's order.

Agents can monitor hackers without a warrant, but cannot monitor an ISP's bill-paying customers without one. Even if a customer is engaged in illegal activity, law enforcement must get a pen register--a judge's authorization equivalent to what's needed for reading incoming and outgoing phone numbers--to track the user's Web surfing habits and e-mail addresses, and a wiretap warrant to read e-mail or monitor other communications.

Uncaging Carnivore

In addition, the U.S. attorney general is required to report semiannually to Congress on its use of the so-called Carnivore e-mail and Internet surveillance system, renamed DCS 1000

The law requires agencies keep a record of who installed e-mail taps, when and for how long, how Carnivore was configured, and what was recorded.

Carnivore can be used only after a judge signs a pen register, and the records must be given under seal to a judge 30 days after the court order for e-mail filtering expires.

For agents to tap without a warrant, an ISP must own its network, law enforcement must be involved in a lawful investigation, and only the suspect's communications can be intercepted. While the police must have "reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation," the law is not specific to hacker terrorists and can be applied to any computer crime investigation.

ISPs are not compelled to furnish facilities or technical assistance without being "reasonably compensated."

Privacy advocates have reacted strongly to the antiterrorism bills, arguing that civil liberties are at stake. The Electronic Privacy Information Center has urged lawmakers not to limit civil liberties in its attempt to investigate terrorists. EPIC has focused specifically on computer and communication monitoring.

(reprinted from PC World)

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