FBI let off cyber snooping hook

Judge rules Feds don't have to reveal bugging method

By Kieren McCarthy, 28th August 2001

The FBI has been let of the hook in its court case against mobster Nicodemo Scarfo. US District Judge Nicholas Politan has now ruled that the Bureau will not have to reveal precisely how it managed to log evidence that Mr Scarfo was involved in illegal gambling and loan sharking.

Mr Scarfo's lawyers claim that the FBI bugged him without possession of a bugging warrant and so the evidence it gathered is inadmissible in court since it was obtained illegally.

Previously Judge Politan said the FBI would have to reveal how it managed to bug Mr Scarfo's computer after it had failed to unscramble encrypted files on his computer. Not unreasonably, the judge said that for him to decide whether it had been obtained legally or not, he would have to know the method that was used. This information would have had to be given to the defence.

But the US government has persuaded the judge that the defence should only get an "unclassified summary". How'd it do that? Well, would you believe it but there's some strange law that can be invoked at times such as this. This one is called the Classified Information Procedures Act - which amazingly allows information to be withheld if national security is at risk. The FBI also promised to give a secret meeting in which it would go into further details over how the system worked.

The FBI installed some kind of key-logging software on Mr Scarfo's machine after it failed to crack his encryption software. Since it didn't have a warrant to bug him, Mr Scarfo's lawyers say his constitutional rights have been infringed. The FBI says the technology it is using falls under current bugging legislation but many remain unconvinced and claim the FBI is going beyond current laws.

It doesn't inspire confidence either when the head of the FBI, Robert Mueller, testified to the Senate a few weeks ago that he was "not familiar" with key-logging technology. That seems about as likely as the Pope being a closet Jew, but then Robert wouldn't lie, would he?

Many observers will be concerned at the failure for the American legal system to bring out into the open the unnerving possibilities that the latest technology makes available to intelligence agencies. ®