SPYING ON THE MOB: UNITED STA TES V. SCARFO - ACONSTITUTIONAL ANALYSIS

Nathan E. Carrell

In this day and age, crime and technology have become entwinedconcepts. Criminals have been using technology to avoid detection,literally cloaking their business dealings through cryptography. In orderto compensate for these technological advances, law enforcement hasupped its own technological applications. From theuse of infraredphotography and DNA testing, to the advent of the Keystroke LoggingSystem, which decipers encryted data, law enforcement has taken aproactice step towards catching tech savvy criminals. More advancedtechnologies have begun to spring up that have less gliches. These newtechnologies, particularly the Keystroke Logging System, have implicatedseveral constitutional concerns. This note discusses the application of theFourth Amendment "search and seizure" clause to these new technologies,focusing on the competing privacy interests and law enforcement interests.It then proceeds to recommend judicial and legislative solutions that willbetter balance these interests.

Subtler and more far-reaching means of invading privacy havebecome available to the Government. Discovery and invention have madeit possible for the Government, by means far more effective than stretchingupon the rack, to obtain disclosure in court of what is whispered in thecloset. ... The progress of science in furnishing the Government withmeans of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papersfrom secret drawers, can reproduce them in court, and by which it will beenabled to expose to a jury the most intimate occurrences of the home.

I. INTRODUCTION

As the use of technology in society rapidly advances, the practice ofcriminals who seek to use this technology to avoid detection and arrestincreases exponentially. Organized crime groups and drug traffickersutilize computers and the Internet to their advantage2 while seeking tocloak their communications using strong cryptography which makes

1. Olmstead v. United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J., dissenting).2. FBI Programs and Initiatives - Carnivore Diagnostic Tool, at http://www.fbi.gov/hq/

lab/carnivore/carnivore2.htm (last visited Feb. 10, 2002) [hereinafter Carnivore].

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them undecipherable.3 Cryptographic software is easily accessible, andcriminals can utilize it in a variety of ways.4 Law enforcement, on theother hand, has not stood idle to these developments.

Technological advances, including infrared photography and DNAtesting, have provided law enforcement officials with new devices toassist in the detection of criminal activity.5 The Federal Bureau ofInvestigation (FBI) has also evolved by expanding its arsenal of tools tothwart criminal use of the Internet and cryptography. The FBI hasdeveloped Carnivore - a tool to intercept e-mail and other electroniccommunications passing through a data point at an Internet ServiceProvider (ISP).6 Another tool in the FBI's repertoire is the KeystrokeLogger System (KLS) which monitors and records keystrokes enteredinto a computer.7 This allows the FBI to access passwords entered viakeystrokes which are required for deciphering encrypted data. The FBIis currently working on a software version of the KLS. This newsoftware, known as Magic Lantern, can be inserted into a suspect'smachine through a computer virus or a common network vulnerability.8New technology in law enforcement results in new challenges for thecourts, not only in determining reliability of the evidence gathered, butalso in balancing society's interest in law and order with an individual'sconstitutionally protected civil liberties.9 In a case of first impression, afederal judge denied a motion to suppress evidence obtained utilizing theKLS. l° The court found that a special warrant pursuant to Title III" isnot needed for the KLS because the method used to obtain evidence isnot regulated under the statute. 2 The court also rejected an argument

3. Statement for the Record of Donald M. Kerr, Assistant Director Laboratory DivisionFederal Bureau of Investigation on Internet and Data Interception Capabilities Developed by theFBI, Before the United States House of Representatives, The Committee on the Judiciary,Subcommittee on the Constitution $ 1 (July 24, 2000), available at

http://www.fbi.gov/congress/congress00/kerr072400.htm (July 24, 2000) [hereinafter Kerr HouseStatement].

4. Overview of PGP, at http://www.pgpi.org/doc/overview/ (last visited Feb. 10, 2002). PrettyGood Privacy (PGP) is free for download at http://www.pgpi.org. Id. PGP is used primarily forencryption of e-mails, however it can be used to encrypt disk partitions and secure phone calls. Id.

5. John E. Theuman, J.D., Annotation, Constitutionality Of Secret Video Surveillance, 91A.L.R.5th 585, § 2 (2001).

6. Manton M. Grier, Jr., The Software Formerly Known As "Carnivore": When Does E-MailSurveillance Encroach Upon A Reasonable Expectation of Privacy?, 52 S.C. L. REV. 875, 875 (2001).

7. Jane Black, Needed: Wiretap Laws for a Wired World, BUSINESSWEEK ONLINE (Aug. 23,2001), available at http://www.businessweek.com/bwdaily/dnflash/aug200l/nf20010823-686.htm.

8. Bob Sullivan, FBI Software Cracks Encryption Wall (Nov. 20, 2001), athttp://www.msnbc.com/news/660096.asp#BODY.

9. Theuman, supra note 5, § 2.10. United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001).11. Title III is the common term for wiretapping statutes located at 18 U.S.C. §§ 2510-22.:

WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 4.2(a) (3d ed. 2000).12. Scarfo, 180 F. Supp. 2d at 581.

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that using the KLS constituted a general search13 in violation of theFourth Amendment's particularity requirement. 4

This note begins with a short discussion concerning criminal use oftechnology in modern society and the constabulary's response indeveloping tools to combat this high-tech criminal activity. I then offer abrief discussion of Fourth Amendment law implicated by use of the KLSin law enforcement, including traditional search warrants, Title III, andnon-audio video surveillance. In the analysis section, I discussconstitutional and other legal implications associated with the applicationof the KLS to gather evidence in light of previous legislative and judicialdecisions. Finally, I propose possible judicial and legislative solutions tobetter protect privacy interests while preserving law enforcement'sability to fight crime.

II. CRIMINAL ACTIVITY AND STRONG CRYPTOGRAPHY

A. Criminal Use of Technology

The use of the Internet and computers is growing rapidly and isparalleled by the exploitation of networks, computers "and databases tocommit crimes and to harm the safety, security, and privacy of others."'5"[T]errorists, spies, hackers, and dangerous criminals are increasinglyusing computers ... to carry out their heinous acts."' 6 Criminals can usecomputers to 1) transmit child pornography; 2) steal customerinformation, including credit card and social security numbers, frombusinesses; 3) commit large-scale frauds; 4) and plan terrorist strikesaround the world.17 One tool criminals use to safeguard their data andcommunications is encryption. 8 Encryption gives Internet users aheightened degree of privacy in Internet communications and a datastorage capacity unequaled in the physical world. 9 One of the mostcommon encryption methods used is Pretty Good Privacy (PGP). PGP

13. Id. at 577-78.14. U.S. CONST. amend. IV.15. Kerr House Statement, supra note 3.16. Statement for the Record of Donald M. Kerr, Assistant Director Laboratory Division

Federal Bureau of Investigations on Carnivore Diagnostic Tool, Before the United States Senate. TheCommittee on the Judiciary 2 (Sept. 6, 2000), available athttp://www.fbi.gov/congress/congress00/kerr090600.htm [hereinafter Kerr Senate Statement]..

17. Kerr House Statement, supra note 3. Suspected shoe-bomber Richard Reid left data on hislaptop connecting him to Al Qaeda and sent e-mails from Internet cafes. Ben Taylor, Shoe BomberLink to Al Qaeda Terror Trail, DAILY MAIL, Feb. 4, 2002, available at 2002 WL 3310294. "RamziYousef, the mastermind of the World Trade Center bombing, stored detailed plans to destroy UnitedStates airliners on encrypted files on his laptop computer." Kerr Senate Statement, supra note 16.

18. Edward L. Allen, Criminals Are Tech-Savvy, USA TODAY, Aug. 30, 2001. at 12A. In UnitedStates v. Scarfo, Nicodemo Scarfo, Jr. encrypted his gambling files using Pretty Good Privacy (PGP).180 F. Supp 2d at 581 (D.N.J. 2001).

19. Orin S. Kerr, The Fourth Amendment In Cyberspace: Can Encryption Create A "ReasonableExpectation of Privacy?," 33 CONN. L. REV. 503, 503 (2001).

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uses a two key system with a passphrase to encrypt plain text intociphertext, and to decrypt the ciphertext back to plain text. ° PGP is sucha strong cryptography that it has been said, ". . . even a billion computersdoing a billion checks a second ... [could] not decipher the result...before the end of the universe." 2'

B. Strong Cryptography -Pretty Good Privacy

"Cryptography is the science of using mathematics to encrypt anddecrypt data. '2 2 Two types of cryptography exist: conventionalcryptography and strong cryptography.23 Conventional cryptography,also known as secret-key or symmetric-key encryption, utilizes one keyfor both encryption and decryption. 4 PGP and other strongcryptography methods used today utilize a two-key, or public-key,system consisting of a public key, a private key and a passphrase Plaintext is encrypted into ciphertext, a mathematical algorithm, using thepublic key.26 The public key is shared with those who wish to sendencrypted data.27 Plain text can only be encrypted with the public key; itcannot be decrypted. 28 To decrypt the ciphertext the correspondingprivate key is needed.29 Although they are related, the private keycannot feasibly be mathematically deduced from the public key.3" Data,which can be encrypted by anyone, can only be decrypted by thepossessor of the private key, thus ensuring the ability of one recipient tomaintain secure communications with multiple senders." This allows

20. How PGP Works, at http://www.pgpi.org/doc/pgpintro/ (last visited Feb. 10, 2002).Ciphertext is the encrypted version of the readable plain text. Id.

21. Id. Experts estimate that it would take several million years for a supercomputer to break anInternet communication encrypted with a 128-bit key. Kerr. supra note 19. at 530 (citing BRUCESCHNEIER, APPLIED CRYPTOGRAPHY, 153 (2d ed. 1996)).

22. How PGP Works, supra note 20.23. Id.24. Id. Conventional cryptography is most useful for data that isn't going anywhere. Id.

However, if one wants to transmit data using conventional cryptography, privacy requires that boththe sender and recipient keep the key secret. Id.

25. ld.Keys are values that a cryptographic algorithm uses to produce a specific ciphertext. Id.They are basically really large numbers made of zeros and ones. See Kerr, supra note 19, at 530. Thelength of a key represents the level of encryption where for example a 256-bit key contains acombination of 256 zeros and ones and has 11,579,000,000,000,000,000,000,000,000,000,000,000,000possible key combinations. Id.

26. How PGP Works. supra note 20. A session key is created and the file is then encrypted withthe session key which itself is encrypted with the public key. Id.

27. Id. A particular user gives his public key to all with whom he communicates. d.28. Id.29. Id. The private key is kept secret to a specific user and is not shared with anyone, unlike

conventional cryptography. Id. The private key is used to decrypt the encrypted session key and thesession key is used to decrypt the data. id.

30. Id. The public and private keys are mathematically related, and given enough time andcomputing power, the private key could be derived from the public key. Id. The user needs toconsider the resources of those who may try to "crack" his encryption when choosing the size of thekey. Id. A very large key could take years to decipher, but it takes longer to encrypt the data. Id.

31. Id.

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secure data to be transmitted over the Internet or any other data channelin which the secure data is encrypted by the sender so that only therecipient can decrypt it. This eliminates the need for sharing passwordsand decreases possible security breaches associated with conventionalcryptography.32 Public and private keys are kept on the computer inencrypted form (keyrings).33 Because the private key can be long andcomplicated, it is encrypted on the recipient's machine using apassphrase or secret key.34 The passphrase can be any one of a numberof combinations of uppercase and lowercase letters, numbers, andpunctuation marks.35 A passphrase is generally longer than a passwordso it is less susceptible to dictionary attacks and other standard code-breaking attempts.36 The advent of two-key encryption has enabledcriminals to encrypt and transfer files without divulging their passwordsor passphrases to others who might eventually share that informationwith law enforcement personnel.

III. HIGH-TECH LAW ENFORCEMENT TOOLS EMPLOYED BY THEFEDERAL BUREAU OF INVESTIGATIONS

"In recent years, the FBI has encountered an increasing number ofcriminal investigations in which the criminals use the Internet tocommunicate with each other or to communicate with their victims."37

Because many Internet Service Providers (ISPs) lacked the ability tofilter communications to identify a particular subject's messages whileexcluding all others, the FBI developed a diagnostic tool known asCarnivore." Carnivore allows the FBI to intercept and collect specificdata at an ISP pursuant to a federal wiretap order.39 The data collected isnecessarily narrow to comply with stringent restrictions under federalwiretapping laws." Some privacy advocates question whether Carnivoreonly gathers data authorized under the wiretap order or whether itunnecessarily encroaches upon an individual's reasonable expectation ofprivacy.4 The events of September 11, 2001, have prompted the CIA toseek authorization for the interception of all e-mails sent from overseas

32. Id.33. Id. Public and private keys are kept in separate files known as keyrings. Id. All public keys

are kept in the public keyring and private keys are stored in a separate private keyring. Id.34. Id.35. Id.36. Id. A passphrase is longer than a password, which makes it less susceptible to programs

utilized to crack passwords. Id. A passphrase should consist of many words with upper and lower caseletters, numerics, and punctuation and it should be difficult for you to forget but hard for others tofigure out. Id.

37. Carnivore, supra note 2.38. Id.39. Id.40. Id. Because what is collected is encompassed by the definition of "electronic

communications" in the wiretapping statutes, federal authorities must comply with the applicablestatutory requirements. 18 U.S.C. §§ 2510-22 (2001).

41. Grier. supra note 6. at 375.

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to the United States.42 However, interception of data is fruitless if thesender and recipient utilize strong cryptography such as PGP, describedabove.

Due to the difficulty of decrypting ciphertext files, the governmenthas countered these encryption techniques with a Keystroke LoggerSystem (KLS).43 Although the precise technical specifications areunavailable," the KLS records keystrokes entered into a computerkeyboard when the computer's modem or other communication devicesare not in use.45 The KLS consists of a combination of firmware,software and/or hardware, and is embedded into the host computer toconceal its existence.' The KLS program examines each keystrokeindividually, and if no communications device is being usedsimultaneously, the keystroke is recorded. This eliminates the possibilityof recording information that is being transmitted through or in route toa modem or other communication device.47 This system has allowed thegovernment to utilize traditional search warrants,48 thereby avoidingmore stringent wiretapping statute requirements. 9 Each component ofthe KLS produces an "output," all of which are combined to produce thecomposite output of the KLS.5°

Because of the secrecy required in gathering data, installation of theKLS must be done surreptitiously.5 Secret installation, however, is notwithout risks. To install the system onto a suspect's computer, the FBImust enter the premises by breaking and entering pursuant to a validwarrant. The suspect may be in the premises or return while the officersare installing the KLS, making this mode of gathering evidenceinherently more dangerous than traditional search warrants.

To avoid the risks associated with installing the KLS onto asuspect's computer, the FBI is developing a software version of the KLSknown as Magic Lantern, which utilizes a computer virus for remoteinstallation on a suspect's machine to obtain the suspect's password or

42. Jeremy Campbell, Less Power To The CIA People, EVENING STANDARD- LONDON, Jan. 22,2002, available at 2002 WL 11331577.

43. Jonathan Krim, High-Tech FBI Tactics Raise Privacy Questions, WASH. POST, Aug. 14, 2001,at Al, available at 2001 WL 23186852.

44. The FBI has successfully kept the technical details secret pursuant to the ClassifiedInformation Procedures Act. United States v. Scarfo, 180 F. Supp. 2d 572, at 575-76, 580-81 (D.N.JDec. 26,2001).

45. Id. at 582.46. Id. at 57747. Id. at 582.48. See Order Granting Application for Surreptitious Entry, United States v. Scarfo, Criminal

No. 00-404 (D.N.J. May 8, 1999), available at http:llwww2.epic.org/cryptolscarfo/order_5-99.pdf.49. 18 U.S.C. §§ 2510-2522 (1994).50. Affidavit of Randall Murch at 5, United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26,

2001), available at http://www.epic.org/crypro/scarfo/murch-aff.pdf Murch Aff. [hereinafter MurchAff.]

51. Leo A. Dawson, Jr. Affidavit in Support of Application for Surreptitious Entry 1 62, at 33,United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26, 2001), available at http://www2.epic.org/crypto/scarfo/affidavit_5_99.pdf.

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passphrase 2 This program could be e-mailed to the suspect by relativesor friends or installed through network vulnerabilities in the computersystem, thereby eliminating the need for a physical break-in and thedangers associated therewith." Like the KLS, Magic Lantern recordskeystrokes typed on the computer, but it is also capable of e-mailing anoutput data file back to law enforcement personnel.54 However, MagicLantern inherently runs the risk that anti-virus software will identify anddestroy the virus, rendering the Magic Lantern ineffective. Although it isrumored that some anti-virus software developers in the securitysoftware industry will assist the FBI, "[m]ajor anti-virus softwarecompanies have vehemently denied any knowledge... saying they wouldnot do anything to compromise the security of their customers."55

Sophos Anti-Virus Inc. of Wakefield, Massachusetts, has assured itscustomers that they rate higher than the FBI so no such loophole wouldbe left in their software to accommodate the government program.56

Although the KLS and Magic Lantern law enforcement tools arefairly recent developments, hardware and software versions of akeystroke logging system are commercially available on the Internet.57

Although one cannot purchase a version that is transmitted by acomputer virus, most of the other functions performed by the KLS andMagic Lantern systems are currently available.

IV. OVERVIEW: UNITED STATES V. SCARFO AND RELATED LAW

A. Background: United States v. Scarfo

Nicodemo Scarfo, a New Jersey mob boss and son of the notoriousand now imprisoned Nicodemo Scarfo, Sr. ("Little Nicky"), used PGP toencrypt computer records of alleged illegal gambling operations." InJanuary of 1999, pursuant to a search warrant, the FBI seized Scarfo's

52. Sullivan, supra note 8.53. Jovi Tanada Yam, L@wyer.com Worst Tech Product of 2001?, Bus. WORLD (PHILIPPINES),

Dec. 27, 2001, available at 2001 WL 31372969.54. Id.55. Id. The anti-virus industry has many serious concerns that programs such as Magic Lantern

could be a tool for hackers as well as for the government. William Jackson, Industry Balks at FBIPlans for a Back Door, GOVT COMPUTER NEWS, Jan. 7,2002, available at 2002 WL 9596476.

56. See Yam, supra note 53.57. Investigator 4 by WinWhatWhere.com has the "ability to invisibly monitor and record all

computer activity including keystrokes...." WinWhatWhere Investigator, athttp://www.winwhatwhere.conw3i4/index.htm (last visited Aug. 30, 2002). KeyGhost.com sellshardware including connectors and keyboards that contain flash ROM that store keystrokes for futuredownloads. KeyGhost KeyLogger: Tiny hardware key loggers record keystrokes athttp://www.keyghost.com (last visited Aug. 30, 2002). KeyLogger.com sells a software version similarto Magic Lantern. KeyLogger.com Software Products, at http://www.keylogger.com/products.htm(last visited Aug. 30, 2002). KeyLogger.com also offers a StealthMail Program, "an e-mail 'robot'which sends out e-mails at pre-set time intervals with any file attachment." Id.

58. Dawson Aff., supra note 51 4, at 3, 1 28, at 30.

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computer from his place of business.59 They recovered a "Factors" filewhich was encrypted using the PGP program.6" After failing in theirattempts to decrypt the file, the FBI developed the Keystroke LoggerSystem.6 In May of 2000, the government sought and obtained a warrantfor surreptitious entry into the business operated by Scarfo to install theKLS on his computer.62 The warrant was for a thirty-day period, andallowed entry and reentry as often as possible to recover data andperform maintenance on the KLS.63 The officers entered the businessfour times and recovered twenty-seven pages of text, including Scarfo'spassphrase, which was suspiciously the very last thing recorded by theKLS.6 The passphrase was used to decrypt data, which revealed a recordof gambling and loansharking operations maintained by Scarfo. 65 Basedon that information, in June 2000, a three-count indictment was returnedby a federal grand jury, which led to the arrest of Nicodemo Scarfo andFrank Paolercio.66 Scarfo filed a motion for discovery requesting thetechnical details of the KLS. 67 The judge ordered the government to filea report outlining the technical details of the KLS.68 The governmentinvoked the Classified Information Procedures Act,69 claiming thatdisclosure of the technical specifications of the KLS would causeidentifiable damage to the national security of the United States.y° Thecourt then required the government to give an unclassified summary ofhow the KLS operates.71 After reviewing all of the motions andaffidavits and holding an ex parte in camera hearing concerning thetechnical details of the KLS, the court denied Scarfo's motion to suppressthe data collected by the KLS and denied Scarfo's motion for discoveryof the more detailed technical specifications of the KLS. y2 The court,however did allow Scarfo discovery of the unclassified summary of how

59. Id.60. 1d.61. 1d.62. See Order Granting Application for Surreptitious Entry, supra note 48.63. Id.64. Supplemental Brief of Defendant Nicodemo S. Scarfo, Memorandum of Law in Support of

Defendant's Position in Regard to Discovery, United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J.2001) (No. 00-00-404). at http:llwww.epic.orglcryptolscarfolsup-suppress.mot.pdf.

65. Robert Rudolph, Lawmen Explain, In General, How They Cracked Scarfo Code, THE STAR-LEDGER (Newark. N.J.), Oct. 11, 2001, available at 2001 WL 28898087.

66. Id.67. Defendant's Motion for Discovery at 2, United States v. Scarfo. 180 F. Supp. 2d 572 (D.N.J.

2001) (Criminal No. 00-404), available at http://www2.epic.org/crypto/scarfo/def disc mot.pdf.68. Court Order Requiring Government to Disclose Details of KLS at 5. United States v. Scarfo,

180 F. Supp. 2d 572 (D.N.J. 2001) (Criminal No. 00-404), available at

http://www2.epic.org/crypto/scarfo/order_8_7_.01.pdf.69. Pub. L. No. 96-456, 94 Stat. 2025. amended by Pub. L. No. 100-690, 102 Stat. 4396 (1988).70. Affidavit of Neil Gallagher in Support of KLS Classification at 3, United States v. Scarfo, 180

F. Supp. 2d 572 (D.N.J. Dec. 26. 2001) (Criminal No. 00-404), available athttp://www.epic.org/crypto/scarfo/gov-afLcipa.pdf.

71. Court Order Requiring Government to Disclose Details of KLSsupra note 68, at 4-5.72. United States v. Scarfo. 180 F. Supp. 2d 572, 583 (D.N.J. Dec. 26. 2001). The court did allow

the defendants motion for discovery for other requested items including the unclassified summary ofthe operation of the KLS. Id.

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the KLS operates. Ultimately, Nicodemo Scarfo pled guilty, ending hislegal battle and delaying an adjudication of the issue by a federalappellate court.7"

B. The "Keystroke Logging System" and Traditional Search Warrants

The use of KLS potentially implicates two important warrantrequirements under the Fourth Amendment: (1) the things to be seizedare to be particularly described; and (2) the warrant shall be limitedreasonably in time, place, and scope of execution, including notification,when reasonable, to the occupant of the premises to be searched.

The particularity requirement stems from the Constitution, whichstates "It]he right of the people to be secure ... against unreasonablesearches and seizures, shall not be violated, and no Warrants shallissue ... [without] particularly describing the place to be searched, andthe persons or things to be seized."74 The Supreme Court has stated,"[t]he requirement that warrants shall particularly describe the things tobe seized makes general searches under them impossible and preventsthe seizure of one thing under a warrant describing another."75 Ageneral warrant authorizes a general exploratory rummaging through aperson's belongings.76 "[N]othing is left to the discretion of the officersexecuting the warrant."77 Additionally, states generally require thepolice to give notice of their authority and purpose prior to executing asearch warrant. In Wilson v. Arkansas,"8 a unanimous Court held "thatthe common-law principle of announcement ... is an element of thereasonableness inquiry under the Fourth Amendment." Theannouncement requirement serves several purposes, includingdecreasing the potential for violence due to an unannounced breakingand entering, protecting privacy by minimizing the chance of entry intothe wrong premises, and preventing physical destruction of property bygiving the occupant opportunity and time to admit the police."However, in cases where there is a risk of evidence destruction orphysical harm to the police, the announcement requirement issuperceded"'

Traditional search warrants are normally executed at a specifiedtime and place in search of particular items. Police then seize items they

73. George A. Chidi, Jr., Mobster Nailed by FBI Keystroke Logger Pleads Guilty. IDG NEwsSERV., Mar. 1, 2002 at http://www.idg.net/idgns/2002/03/01/MobsterNailedByFBIKeystrokeLogger.shtml.

74. U.S. CONST. amend. IV.75. Marron v. United States, 275 U.S. 192. 196 (1927).76. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).77. Marron, 275 U.S. at 196.78. 514 U.S. 927, 930 (1998).79. LAFAVE, supra note 11, § 3.4(h).80. See Richards v. Wisconsin, 520 U.S. 385, 388 (1997) (recommending that exceptions to

knock-and-announce rule be determined on a case-by-case basis, and rejecting a blanket exception forfelony drug cases).

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are searching for and any other illegal items in plain view. At the time ofa search, previously disposed or destroyed items- old mail, letters, orhand-written notes - are not subject to seizure. Use of the KLS, incontrast, is the equivalent of a continual search of one's personal itemsover a specified period of time; even previously "deleted" letters ortyped notes are still capable of being seized per se. The KLS seizesinformation that would not have been available under a traditionalsearch warrant if the suspect had destroyed physical papers or otherevidence prior to execution of the warrant. However, the KLS is limitedin time, place, and scope, in the sense that it only records keystrokes on aparticular computer for a particular time period authorized by thewarrant.

C. Olmstead and Title III

In Olmstead v. United States,81 the Supreme Court held that theinterception of messages on telephone lines was not a search within themeaning of the Fourth Amendment because no houses were searched,and because phone messages are intangible things which cannot beseized. Concerned about intrusive, unwarranted invasions of privacy,Congress enacted the Federal Communications Act of 1934,82 providingthat "no person not being authorized by the sender shall intercept anycommunication and divulge the existence, contents, substance, purport,effect, or meaning of such intercepted communication to any person."83Through the passage of time it became clear that the fears expressed byJustice Brandeis, dissenting in Olmstead, were becoming realities. 4

More sophisticated means of electronic surveillance were developed andput into use.85 In 1967 the Supreme Court retreated from their originalposition in Olmstead. In Berger v. New York,8 6 the Court held that astate eavesdropping statute violated the Fourth Amendment. In Katz v.United States,87 the Supreme Court held that use of recording devices tointercept conversations from a public telephone booth was a violation ofthe Fourth Amendment because it violated the defendant's "reasonableexpectation of privacy." These decisions made it clear that electroniceavesdropping and wiretapping are also subject to the limitations of theFourth Amendment.88 A year later Congress amended the wiretappinglaws by enacting Title 11189 of the Omnibus Crime Control and Safe

81. 277 U.S. 438 (1928).82. 48 Stat. 1103 (codified in 47 U.S.C. § 605 (2001)).83. LAFAVE, supra note 11, § 4.1(b).84. See Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).85. LAFAVE, supra note 11, § 4.1(c).86. 388 U.S. 41 (1967).87. 389 U.S. 347, 361 (1967) (Harlan, J., concurring).88. LAFAVE, supra note 11, § 4.1(c).89. Title III is the common name used for this legislation and subsequent legislation covering

wiretapping. See id. at § 4.2(a).

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Streets Act.90 However, this Act only protected oral or wirecommunications of aural transfers.91 In 1986 Congress further amendedTitle III with the Electronic Communications Privacy Act (ECPA).92

"The principal purpose of the ECPA amendments was to extend to'electronic communications' similar protections against unauthorizedinterceptions that Title III had been providing for 'oral' and 'wire'communications via common carrier transmissions."9 3 In November of2001 Congress again amended sections of Title III to help preventterrorist activities against the United States.94 The 2001 amendments willnot be discussed in this paper because they primarily pertain to thegathering of information relating to foreign intelligence and the nationalsecurity of the United States. Today's wiretapping laws embody anevolution beginning with Olmstead and ends at a point that extendsbeyond the traditional protections offered by the Fourth Amendment.

Title III warrants, which seek interception of oral or wirecommunications, require authorization of a high-level Department ofJustice (DOJ) official prior to application by the local United StatesAttorney's office.95 Title III warrants seek interception of electroniccommunications and require the authorization of a government attorneybefore the warrant application can be made to the judge.96 Unliketraditional search warrants,9" Title III warrants cannot be issued by afederal magistrate judge; they can only be issued by a federal districtcourt judge and certain authorized state judges.98 Interception ofcommunications is limited to situations where such interception mayprovide, or has provided, evidence of certain delineated offenses.99

Applications for wiretapping authorization must show probable causeand state with specificity and particularity details of the offense that hasbeen or will be committed, description of the nature and location of thefacility where the interception will take place, type of communications tobe intercepted, the identity of the person(s), if known, committing theoffense and whose communications are being intercepted."° Thus, the

90. Pub. L. No. 90-351,82 Stat. 197 (1968).91. Id.92. Pub. L. No. 99-508, 100 Stat. 1848 (1986).93. Brown v. Waddell, 50 F.3d 285, 289 (4th Cir. 1995).94. Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept

And Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).95. 18 U.S.C. § 2516,2518 (2000).96. 18 U.S.C. § 2516.97. Traditional search warrants must be issued by a "neutral and detached magistrate."

Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971). Under the Fourth Amendment the magistratedoes not necessarily need to be a lawyer or a judge, but "must meet two tests. He must be neutral anddetached, and he must be capable of determining whether probable cause exists for the requestedarrest or search." Shadwick v. City of Tampa, 407 U.S. 345, 350 (1970).

98. 18 U.S.C. § 2510(9).99. 18 U.S.C. § 2516.

100. 18 U.S.C. § 2518(1). The application must also "state the applicant's authority to make suchapplication.., the identity of the ... officer making the application.., the officer authorizing theapplication ... a full and complete statement as to whether or not other investigative procedures have

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criminal wiretapping statutes "focus on gathering hard evidence" and noton gathering general intelligence.' Court orders have a thirty-daymaximum surveillance period and interceptions must terminate sooner ifthe objectives are met. 1112 Judges "may require reports to be made...showing what progress has been made toward achievement of theauthorized objective and the need for continued interception.., at suchintervals as the judge may require. ' 'lu3 If extensions are necessary, theyare allowed up to a maximum of an additional thirty days."~

The additional limitations and constraints imposed by Title IIIevidence a Congressional intent to grant greater protections whereinvasions of personal privacy are so intrusive. Advances in technologyhave given society more efficient ways of communication, includingcellular, satellite, and Internet communications. These new methods ofcommunication are not entirely secure; each has vulnerabilities thatallow for intrusion. Much of what once was sent by regular mail is nowsent via e-mail, and yet an equivalent means to the Carnivore systemdoes not exist for intercepting mail sent through the United States PostalService. Despite these advances in technology to date, the statutoryexclusionary rule applicable to interception of oral and wirecommunications has not been extended to electronic communications.""Thus, any evidence obtained under a warrant seeking interception ofelectronic communications that complies with the requirement of TitleIII will not result in suppression of that evidence.

D. Video Surveillance

Video surveillance has been used more readily in the past decade bylaw enforcement and private businesses that seek to protect themselvesfrom employee or customer misconduct." However, video surveillanceis considered far more intrusive than conventional investigativetechniques. 7 Because of its intrusive nature, the use of secret videosurveillance has often been challenged as a violation of the FourthAmendment's prohibition against unreasonable searches and seizures.

been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be toodangerous ... a statement of the period of time for which the interception is required to bemaintained ... a full and complete statement of facts concerning all previous applications...involving any of the same persons, facilities, or places specified in the application, and the action takenby the judge on each such application[.]" § 2518(1).

101. Carnivore, supra note 2.102. 18 U.S.C. § 2518(5).103. 18 U.S.C. § 2518(6).104. 18 U.S.C. § 2518(5).105. § 2515. Incorporation of electronic communications into the statutory exclusionary rule was

debated in the House of Representatives in H.R. 5018, The Electronic Communications Privacy Act of2000. but inclusion was ultimately rejected. Summary of H.R. 5018, The Electronic CommunicationsPrivacy Act of 2000. CENTER FOR DEMOCRACY & TECHNOLOGY- CYBER SECURITY DIVISION, Sept.

17, 2000. available at http://www.cdt.org/security/000927hr5018.shtml.106. Theuman, supra note 5, § 2.107. Id.

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The following discussion is applicable to silent video surveillance only, asany video surveillance recording video and sound would requirecompliance with Title III due to the interception of oral communicationsand aural transfers."'

Courts generally reject the argument that use of secret videosurveillance is unconstitutional per se."' Courts vary as to what isrequired for issuance of a warrant authorizing secret video surveillance,however. Although secret video surveillance is not unconstitutional perse, the Fourth Amendment's warrant requirement still applies to videosurveillance."" Under certain circumstances, some courts allowwarrantless video surveillance."' Where a warrant is required, manycourts impose more stringent requirements, borrowing Title III'sprovisions relating to the Fourth Amendment's particularity andminimization requirements due to the increased invasion of privacyimposed by the use of video surveillance." 2

For secret video surveillance, Torres and Biasucci borrow fourprovisions of Title III: 1) the issuing judge must be satisfied that "normalinvestigative procedures have been tried and have failed or reasonablyappear to be unlikely to succeed if tried or to be too dangerous;""' 3 2) thewarrant must contain "a particular description of the type ofcommunication sought to be intercepted, and a statement of theparticular offense to which it relates;"" 4 3) the period of interceptionmust not be "longer than necessary to achieve the objective of theauthorization, or in any event longer than thirty days" (extensionspermissible);"5 and 4) the warrant must require the interception "beconducted in such a way as to minimize the interception ofcommunications not otherwise subject to interception under [Title111].55116

108. 18 U.S.C. § 2510(2).109. United States v. Torres. 751 F.2d 875 (7th Cir. 1984). See also United States v. Andonian.

735 F. Supp. 1469 (C.D. Cal. 1990).110. United States v. Falls, 34 F.3d 674, 683 (8th Cir. 1994).111. United States v. Cox, 836 F. Supp. 1189 (D. Md. 1993) (holding consensual video surveillance

did not violate the Fourth Amendment). See also State v. Clemmons, 81 Wash. App. 1003 (Div. 1996),available at 1996 WL 146721 (holding that persons subjected to video surveillance had no reasonableexpectation of privacy).

112. Torres, 751 F.2d at 883-84. See also United States v. Biasucci, 786 F.2d 504, 507-12 (2d Cir.1986).

113. 18 U.S.C. § 2518(3)(c).114. 18 U.S.C. § 2518(4)(c).115. 18 U.S.C. § 2518(5).116. Id.

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V. DISCUSSION

A. The "Keystroke Logger System" and the Classified InformationProcedures Act

Federal law enforcement encompasses numerous organizations,including the Federal Bureau of Investigation, Central IntelligenceAgency, National Security Agency, Immigration and NaturalizationService, Drug Enforcement Agency, and the Bureau of Alcohol,Tobacco, and Firearms. As one might expect, criminal investigations canoverlap from one organization to another. Methods employed to fightcrime and gather evidence are also shared among departments. Manygroups, especially those operating internationally, use sensitive tools andclandestine procedures to gather evidence and information. Fulldisclosure of such operations could jeopardize the safety and well-beingof men and women serving the United States abroad. When secretoperations and techniques are employed in domestic law enforcementoperations, however, disclosure of the methods employed and theirfunction is essential in determining whether a suspect's constitutionalrights have been violated.

In Scarfo's case, the Federal District Court for the District of NewJersey found that operating the KLS while the computer's modem andcommunications devices were inactive rendered Title III inapplicable. 17

The Court, however, did not allow the defendants' motion for discoveryof the technical details of the KLS. "8 The government's refusal torelease the technical details fails to ensure that no electroniccommunications are being intercepted."9 Even assuming electroniccommunications are being intercepted, under the law as it exists today,they would not be subject to the statutory exclusionary rule. 2° In Kyllov. United States,2' the Supreme Court extensively reviewed thetechnology involved and determined that its application to the defendantviolated the Fourth Amendment.

Nicodemo S. Scarfo and Frank Paolercio were denied theopportunity to discover how the KLS operated.12

' The governmentsuccessfully argued that it has the right to keep information classified 23

117. United Stated v. Scarfo, 180 F. Supp. 2d 572, 582 (D.N.J. Dec. 26, 2001).118. Id.119. Id.120. 18 U.S.C. § 2515 ("Whenever any wire or oral communication has been intercepted, no part

of the contents of such communication and no evidence derived therefrom may be received inevidence in any trial, hearing, or other proceeding .... ).

121. 533 U.S. 27 (2001). In Ky~lo, the Court evaluated the technology involved in a FLIR(forward looking infra red) device used by law enforcement officers to locate suspect marijuanaharvesting in personal residences, implicating the defendant. Id.

122. United States v. Scarfo, 180 F. Supp. 2d 872,580-81.123. Id.

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under the Classified Information Procedures Act (CIPA).'24 Withouttechnical specifics, though, there is no assurance that the system itself isnot intercepting keystrokes contemporaneously with modem operations.However, the Supreme Court in Kyllo indicated that one reason theydeemed the intrusion a violation of the Fourth Amendment was that thetechnology was not widely available commercially in the United States.'25

Software and hardware versions of the type the KLS used against Scarfoare readily available on the Internet.'2 6 In Scarfo, the Court held an exparte in camera hearing to review the technical details of the KLS andfound that allowing disclosure would cause identifiable damage to thenational security of the United States.'27 The district court reasoned thatCIPA "strikes a balance between national security interests and acriminal defendant's right to discovery by allowing for a summary whichmeets the defendant's discovery needs."'28 The defendants were grantedthe Murch Affidavit - the unclassified summary of the KLS. 2 9 But theMurch Affidavit was merely a statement that the KLS did not recordkeystrokes while the modem was operational. 3 This was a highlyquestionable proposition since the output of the KLS (which wasauthorized for sixty days) was twenty-four pages of text, and the very lastthing typed was the passphrase sought by the FBI.'

The government's argument of necessity for national securityinterests is refutable. In today's high-tech environment, technologydominates the intelligence arena, any foreign nations or subjects whosuspect that the KLS is being used to spy on them will now be analyzingtheir computers for aberrations in hardware, firmware or software thatwould indicate the presence of the KLS. Discovery of its presence ismost likely inevitable.

Should the government be able to spy on its own citizens whiledenying adversely affected citizens an opportunity to examine thetechnology used to determine whether or not their constitutional rightshave been violated? When the federal government, out of concern fornational security, utilizes technology to spy, the interest in protecting theconstitutional rights of citizens adversely affected should outweigh anynational security interest. Without such a rule, the government would bevirtually unrestrained in its use of spy technology in domestic law

124. Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025 (1980), amended byPub. L. No. 100-690, 102 Stat. 4396 (2002).

125. Kyllo, 533 U.S. at 40.126. See WinWhatWhere Investigator, supra note 57.127. Scarfo, 180 F. Supp. 2d at 575.128. Id. at 583.129. Id.130. Murch Aff., supra note 50, at 5-6.131. Memorandum of Law in Support of Defendant's Position in Regard to Discovery, supra note

64. The probability of such an occurrence over a broad length of time is very low, coupled with thelow probability that the file was opened only for the sake of opening it and that nothing else was typedalong with the fact that only twenty-four pages of text were recovered over a sixty-day period. Id.

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enforcement, subject only to review through ex parte in camera hearingsin which a member of the judiciary must evaluate what is often verycomplex technology to determine whether a defendant's constitutionalrights have been violated. Additionally, because the defendant takes nopart in the hearing, that which is presented for evaluation by the i-udge issolely what is set forth by the government. Such a scheme couldpotentially result in an abuse of power, ultimately denying thoseadversely affected the opportunity to conduct a thorough review of thetechnical details to determine if their rights guaranteed by theConstitution are violated. Adopting a rule requiring disclosure wouldnot dampen the effectiveness of the government's ability to protectnational security; rather, it would merely limit the government's use ofmore intrusive tools in the domestic arena to those which thegovernment is willing to disclose to the general public. Essentially, thegovernment would be forced to choose only those techniques which arenot violative of the constitutional rights guaranteed to every person inthe United States. Although this could have an adverse effect on lawenforcement in the United States by enabling criminals to work aroundsuch technology, this would not be the first instance in which criminalelements have found ways to evade the authorities and circumventcapture."'

B. The "Keystroke Logger System" and Title III

As discussed above, Title III warrants for electronic surveillancehave much more stringent requirements than traditional searchwarrants. 33 However, Title III warrants apply only to wire, oral, orelectronic communications as they are statutorily defined. 34 Wirecommunication includes only aural transfers via wire, cable, or othersimilar connection between two points."5 "Oral communication" meansany oral communication by a person exhibiting an objective expectationof privacy; yet it does not include electronic communications.'36 18U.S.C. § 2510 defines electronic communications as, "any transfer ofsigns, signals, writing, images, sounds, data, or intelligence of any naturetransmitted in whole or in part by a wire, radio, electro-magnetic,photoelectronic or photooptical system that affects interstate or foreigncommerce, but does not include" any oral or wire communications,communications via a tone-only paging device, any tracking devicecommunications, and electronic funds transfer information stored with a

132. Criminals use encryption and technology to get around current law enforcement techniquesas evidenced by United States v. Scarfo.

133. See supra notes 85-104 and accompanying text.134. 18 U.S.C. § 2510 (2000).135. Id. § 2510(1).136. Id. § 2510(2).

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financial institution.'37 Keystrokes are neither oral communications noraural transfers. Therefore, if Title III is applicable, these keystrokes mustbe electronic communications, requiring that they be transferred by asystem affecting interstate commerce.' In Scarfo, the governmentsuccessfully argued that recorded keystrokes typed on a computerwithout active communications does not constitute an interception ofelectronic communications under Title III. 9

The government took the position in Scarfo that data collected bythe KLS does not affect interstate commerce nor is it intercepted becausethe modem is inactive while the keystrokes are recorded. 4 " One couldargue this position is flawed in at least two respects. First, a user canqueue an e-mail and send it at a later time. A user may wish to type hise-mails and messages, connect to the Internet, and then send them atonce to minimize interruption of his phone service. These e-mails wouldbe intercepted and recorded by the KLS because they are notcontemporaneous with modem operation. Second, many users may wishto communicate via e-mails with attachments rather than using theframework of the e-mail program itself. These keystrokes would also berecorded, even though they would be later e-mailed through the Internet.To protect e-mails or attachments typed during modem operation and torefuse protection for e-mails typed prior to connecting to the Internet isan unwarranted distinction that frustrates the purpose of the ECPA. 4'However, in Scarfo, the government successfully argued that because thedata recorded by the KLS is not being transmitted contemporaneouslythrough a modem or other communications device, the data is notintercepted under Title III.42 The government cites numerous casesapplying the contemporaneous interception standard set forth in UnitedStates v. Turk.'43 However, the sources cited all reflect a situation ofpost-transmission interception.'" In fact, one case cited by the

137. Id. § 2510(12).138. Id.139. United States v. Scarfo, 180 F. Supp. 2d 572, 582 (D.N.J. Dec. 26, 2001).140. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions at 25-29,

United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. Dec. 26, 2001) (No. 00-404). available athttp://www2.epic.org/crypto/scarfo/gov-brief.pdf.

141. Brown v. Waddell, 50 F.3d 285, 289 (4th Cir. 1995).142. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions, supra note

140.143. 526 F.2d 654, 659 (5th Cir. 1976) (concluding that "no new and distinct interception occurs

when the contents of a communication are revealed through the replaying of a previous recording").144. Brief of the United States in Opposition to Defendant Scarfo's Pretrial Motions, supra note

140 (citing Steve Jackson Games, Inc. v. United States Secret Service. 36 F.3d 457 (5th Cir. 1994));United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990); United States v. Turk. 526 F.2d 654, 658 (5thCir. 1976); Fraser v. Nationwide Mutual Insurance, 135 F. Supp. 2d 623 (E.D. Pa. 2001): EagleInvestment v. Tamm, 2001 WL 576133 (D. Mass. 2001); Wesley College v. Pitts. 974 F. Supp. 375, 387(D. Del. 1997); Bohach v. Reno, 932 F. Supp. 1232 (D. Nev. 1996); United States v. Reyes, 922 F.Supp. 818 (S.D. N.Y. 1996): Payne v. Norwest, 911 F. Supp. 1299 (D. Mont. 1995): United States v.Moriarty, 962 F. Supp. 217 (D. Mass. 1994); Lopez v. First Union. 129 F.3d 1186 (11 th Cir. 1997).

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government, Fraser v. Nationwide Mutual Ins. Co.,'4 5 is detrimental totheir argument that Title III does not apply to the KLS. In Fraser theCourt stated, "[r]etrieval of a message from storage while it is in thecourse of transmission is 'interception' under the Wiretap Act." '146 Inanother case distinguished by Fraser, the Ninth Circuit held that thecontents of a secure website were "'electronic communications' inintermediate storage that are protected from unauthorized interceptionunder the Wiretap Act." '147 The Court in Konop also stated, "[a]nelectronic communication in storage is no more or less private than anelectronic communication in transmission." The KLS does not retrievestored data; it intercepts data as it is entered. Analogizing to Fraser andKonop, if retrieval of intermediate storage is interception then a fortioriretrieval of the data as it is entered prior to and for the purpose oftransmission is also interception. Queued e-mails and files meant forimmediate e-mail attachment should fall under the protections of TitleIII. Data storage, however, is not subject to the statutory exclusionaryrule. Thus, if the court were to determine such queued e-mails were"data storage," they would not be subject to exclusion, provided that therequirements of Title III were met.'48 The KLS, as applied in Scarfo,does not exclude this type of information, therefore Title III should beapplicable in spirit if not literally.

The definition of "electronic communications" is ambiguous as towhich term the phrase "affects interstate or foreign commerce" applies.'49

This denotation could be construed as modifying the transfer of data, thesystem used to transfer data, or both. The government's position inScarfo reflects its desire to "have its cake and eat it too." Thegovernment's interpretation of Title III would require the transmissionto affect interstate commerce. A literal reading of the statute, however,suggests a more plausible interpretation requiring that the transmissionbe sent by a system affecting interstate commerce. 5 ' Congress regulatescriminal activity primarily under the authority granted to them by theCommerce Clause of the Constitution. 5' The government usually seeksan expansive definition of what affects interstate commerce, when acriminal statute is challenged on the basis that Congress has exceeded itspower granted by the Commerce Clause.' Consider the following

145. 135 F. Supp. 2d 623 (E.D. Pa. 2001).146. Id. at 635.147. Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035 (9th Cir. 2001), withdrawn, Konop v.

Hawaiian Airlines, Inc., 262 F.3d 972 (9th Cir. 2001).148. See, e.g., United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996).149. See 18 U.S.C. § 2510 (12) (2000).150. Id.151. U.S. CONST. art. 1, § 8, cl. 3.152. See United States v. Kallestad, 236 F.3d 225,227-31 (5th Cir. 2000) (holding Congress has the

power under the Commerce Clause to regulate child pornography because it is inherently a nationalmarket and that defendant's film had traveled in interstate commerce satisfying the jurisdictionalelement). See also United States v. Santiago, 238 F.3d 213, 215 (2d Cir. 2001) (affirming defendant'sconviction for possession of a firearm that has traveled in interstate commerce by a felon); United

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scenario: in Scarfo's case a Title III warrant was successfully obtained foruse of the KLS but Nicodemo Scarfo and Frank Paolercio challenge theconstitutionality of the KLS as applied to their case as beyond the powergranted to Congress under the Commerce Clause. In this hypothetical,there is no doubt that the government would seek to uphold theregulation as a valid exercise of the Commerce Power. It would arguethat Scarfo's computer contains a modem, which has been connected tothe Internet at intermittent times,153 and a computer used to connect tothe Internet is without a doubt a system that affects interstate commerce.Courts have frequently upheld federal criminal statutes using ajurisdictional hook, requiring only that a physical object has traveled ininterstate commerce."' In such cases, the government would inevitablyargue for a broad construction of the phrase "interstate commerce".Arguing that Scarfo's single computer has an inconsequential or minimaland attenuated effect on interstate commerce would also fail. Applyingthe principles of United States v. Lopez55 and Wickard v. Filburn,l5 6 ahigh percentage of commercial products, that travel in interstatecommerce, fall within the congressional regulation power due to thepotential aggregate effect of all like products on interstate commerce (anargument frequently relied on to uphold federal legislation rooted in theCommerce Clause). In Scarfo, the government seeks to limit themeaning of "affects interstate ... commerce"'57 because it suits itsimmediate goal. In summary, the government should not be allowed anexpansive definition of interstate commerce when defending a statute,while also being allowed a narrow definition when seeking to avoid aburdensome statute.

Ultimately, government compliance with the requirements of TitleIII, (whether or not the intercepted communications were "electroniccommunications" as that term is statutorily defined) would haveprevented the suppression of the evidence because electroniccommunications are not protected by the statutory exclusionary rule.'

States v. Nathan, 202 F.3d 230,234 (4th Cir. 2000) (affirming conviction where government only had toprove defendant's firearm and ammunition had previously traveled in interstate commerce).

153. Memorandum of Law in Support of Defendant's Position in Regard to Discovery, supra note64.

154. Kallestad, 236 F.3d at 225 (upholding 18 U.S.C. § 2252(a)(4)(B), which states "knowinglypossesses 1 or more books ... or other matter.., that has been mailed, or has been shipped ortransported in interstate or foreign commerce, or which was produced using materials which havebeen mailed or so shipped or transported," as a constitutional exercise by Congress of the CommercePower); see also Santiago, 238 F.3d at 216: Nathan, 202 F.3d at 234.

155. 514 U.S. 549 (1995) (establishing the modern test for valid Congressional exercise of theCommerce Power).

156. 317 U.S. 111 (1942) (holding valid Congressional exercise of the Commerce Powerestablishing limits on individual wheat farmers because of the potential aggregate effect of all wheatfarmers on interstate commerce).

157. 18 U.S.C. § 2510(12) (2000).158. 18 U.S.C. § 2515.

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C. The "Keystroke Logging System" and Video Surveillance

Non-audio video surveillance gathers visual data, whereas the KLSgathers only digitized keystroke data. Each method is intrusive in adifferent way. The KLS records the keystrokes that are representationsof knowledge that has been transferred to a computer. These caninclude an individual's most intimate thoughts, recollection of events,banking records, letters and messages of a highly personal nature. Onthe other hand, video surveillance records visual depictions andmovements, which can include full nudity and acts intended only for theprivacy of the home. Despite these differences, an analogy may bedrawn between the KLS and non-audio video surveillance investigativemethods. Title III does not expressly include either method ofinvestigation, thus it is more stringent requirements are not explicitlyapplicable to a case involving either method. Both methods constitute aninvasion of privacy more intrusive than that imposed through executionof a traditional search warrant. When the execution of a traditionalsearch warrant occurs, it is limited by time and place and by particularitems. Police then seize items they are searching for and any other illegalitems in "plain view." In contrast, video surveillance and the KLS recordongoing activities over a period of time, and are not limited to what isavailable at the time the warrant is executed. For this reason, the addedprotections offered by Torres and Biasucci should be afforded to adefendant against whom evidence obtained by the KLS is sought to beintroduced.

In Scarfo's case, although signed by a magistrate judge, the orderauthorizing surreptitious entry and installation of the KLS onto Scarfo'scomputer would have met the added requirements of Torres for non-audio video surveillance.159 Normal investigative techniques failed. TheFBI previously seized Scarfo's computer and recovered theundecipherable "Factors" file.16 ° Normal methods would have also beenunlikely to succeed in the future, for without the passphrase, noencrypted files could be deciphered. The order included the particular"communications" intended for interception and allowed surreptitiousentry to "leave behind software, firmware, and/or hardware equipmentwhich will monitor the inputted data entered on ... Scarfo's computer byrecording the key related information as they are entered[.]"'' 1 Theorder listed specific criminal offenses and corresponding statutes.62 Theauthorization also limited the period of interception to that which was

159. See Order Granting Application for Surreptitious Entry, supra note 48.160. Dawson Aff.. supra note 51. 157, at 29.161. Order Granting Application for Surreptitious Entry, supra note 48, at 4.162. Id. Information was sought relating to "illegal gambling, loansharking and other

racketeering offenses, and all of which are fruits, instrumentalities and/or evidence of violations of 18U.S.C. § 371 (conspiracy. §§ 892-94 (extortionate credit transactions). § 1955 (illegal gamblingbusiness) and § 1962 (RICO)[.]" Id.

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necessary to achieve the objective within a thirty-day period.163 Finally,the order authorized recovery methods which would not capturecommunications protected under Title III, minimizing the actual datarecorded.'64

VI. PROPOSED SOLUTIONS

A. Legislative Amendments

Because the KLS captures all keystrokes not typedcontemporaneously with modem operations, the system's potential forintrusion surpasses phone taps, pen registers, trap and trace devices andconventional audio bugs. Interception of phone conversations or e-mailsseems much less intrusive because the individual sends thesecommunications beyond the boundaries of his home. The KLS recordsinformation entered into a computer inside the boundaries and sanctityof the home. The information technology revolution has led to digitalstorage in computers of data previously kept in a typed or handwrittenformat. The KLS can intercept a broad range of data exceeding thatwhich other electronic surveillance methods can intercept, includingletters, diaries, queued e-mails and financial information, whethercommunicated outside the home or not. Government investigators mustperuse all of this personal information to discern the passphrase or otherinformation sought. As discussed above, the KLS records much morethan conventional techniques currently within the statutory definition ofelectronic communications, such as phone taps. Because of this potentiallevel of intrusion, the most viable solution is a modification of Title III.Such a modification should attack the appropriate safeguards offered byTitle III to the KLS and Magic Lantern systems, whether or not theyinclude the statutory exclusionary rule.

B. Judicial Remedies

Considering the potential intrusiveness of the KLS and the intent ofCongress in passing the Electronic Communications Privacy Act, courtswould be justified in excluding evidence collected by the KLS as notcomplying with the requirements of Title III. As Konop and Fraser haveshown, post-transmission and pre-transmission storage is easilydistinguishable. As Konop and Fraser also note, some storage isnecessary for the electronic communication of data. Seizure ofkeystrokes typed into an e-mail program that queues messages forsubsequent transmission is analogous to the types of pre-transmissionstorage necessary for electronic communications. Courts could also

163. Id.164. See id.

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redefine the beginning and ending point for transmission of electroniccommunications to include the entering of data likely to be transmittedin the immediate future.

Failing to disclose the full details of the KLS restricts a person'sright to determine if the government violated his constitutional rights.As stated above, the government should not be allowed to use high-techlaw enforcement tools in the domestic arena if they are unwilling todisclose their methodology. Hiding behind the smokescreen of nationalsecurity gives the government an open invitation to use any and all spytechnology on persons residing in the United States. This problem iseasily remedied by restricting law enforcement to tools with disclosedtechnical details in situations when the information seized is uncertain.Of course, the FBI could obtain a warrant that satisfies the morestringent requirements of Title III. Disclosure of the KLS technicaldetails would then be unnecessary, as there could have been nothingseized that was unwarranted.

Finally, if failing the first two recommendations posed above, courtsshould apply the added particularity and minimization requirementsapplicable to non-audio video surveillance, as stated in Torres. Theintrusive nature of the KLS surely requires something more than atraditional search warrant.

VII. CONCLUSION

Once again, the courts must address what Samuel D. Warren andLouis D. Brandeis stated so eloquently in 1890:

Recent inventions and business methods call attention to the nextstep which must be taken for the protection of the person, and forsecuring to the individual what Judge Cooley calls the right 'to belet alone.'.. . [N]umerous mechanical devices threaten to makegood the prediction that 'what is whispered in the closet shall beproclaimed from the house-tops.'... [Tihe question whether our law will recognize and protect theright to privacy in this and in other respects must soon come beforeou[r] courts for consideration.'65

Using the KLS pursuant to a traditional search warrant does notadequately ensure a suspect's Fourth Amendment rights are protected. Ido not propose to ban its use completely. Instead, I merely propose thatTitle III be amended to balance individual civil liberties with society'sinterest in preserving law and order. In the absence of such legislation, Ipropose courts should reign in the constabulary's use of these invasivetechniques, which are so carefully designed to circumvent legislativerestrictions embodied in Title III.

165. Samuel D. Warren & Louis D. Brandeis, The Right To Privacy, 4 HARV. L. REV. 193, 195-96(1890).

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