NewsMax.com Wires
Tuesday, July 31, 2001

Nicodemo Scarfo, son of jailed mob boss Nicodemo "Little Nicky" Scarfo, is facing FBI charges of overseeing bookmaking and loan sharking operations.

Using a device that secretly recorded Scarfo's computer keystrokes, agents got hold of a password he used to decrypt illegal transaction records he kept on his computer. The agents had seized Scarfo's computer records in a previous raid but could not break the password required by his encryption software PGP, or Pretty Good Privacy.

FBI agents instead entered Scarfo's office and surreptitiously placed a device that recorded his keystrokes. From there they learned his password, and then used it to decrypt records that became state's evidence.

Scarfo contends federal investigators misused their search warrant when they implanted the device in 1999. They want the FBI, which has failed to disclose technical details of the stroke counter, to open up about exactly what the device did.

Judge Nicholas H. Politan of United States District Court set the trial for Sept. 11 and held in place a gag order on both sides, said Michael Drewniak, spokesman for the U.S. attorney's office.

"I think this squarely raises the issue of what is appropriate in the course of high-tech law enforcement investigations," said David Sobel, general counsel for the Electronic Privacy Information Center, a Washington nonprofit group dealing with computer and online privacy issues. "Certainly, following the Kyllo case, it is clear a secret technique can't survive constitutional scrutiny."

In the Kyllo case, the Supreme Court this summer ruled that police violated the rights of an Oregon man, Danny Kyllo, when they used a high-tech thermal imaging device to detect heat emanating from his home, which contained a marijuana-growing operation.

Critics say law enforcement's embrace of crime fighting gadgetry, from remote scanning devices to the FBI's much lambasted e-mail monitoring system formerly known as Carnivore, too often leads to violations of civil liberties. And the intersection between technical architecture and jurisprudence is getting busier.

A controversial face-scanning technology that police in Tampa, Fla., mounted on some city streets, is another crime-fighting tool that's a sure bet for court challenges. That system uses surveillance cameras to capture images of people's faces as they walk down those streets and then compare the images to photos of wanted criminals, looking for a match.

American Civil Liberties Union and House Majority Leader Dick Armey, R-Texas, have said the system amounts to unwarranted searches. But Michael Middleton, professor of law at the University of Missouri-Columbia, claims that, for better or worse, the system is simply a technological extension of a policeman's eyes.

Another gadget sure to attract constitutional scrutiny is being developed by the National Institute of Standards and Technology. The tool uses electromagnetic waves to scan crowds and find people who are holding concealed weapons. It is designed to perform searches from up to fifty yards away and has already been criticized by privacy advocates.

Some experts believe the public's acceptance of privacy invasions depends on how they perceive the threats new gadgets are intended to counter. As fear of crime and terrorism rises, so does public tolerance for some intrusions, Middleton said.

"Technology permits law enforcement agents to obtain information that would otherwise not be open to public prying even where there is a limited expectation of privacy recognized," said Harold J. Krent, associate dean of Chicago-Kent College of Law. Referring to surveillance cameras, he said that "we will continue to see new innovations that intrude into individual privacy to a limited extent but will not be considered full fledged searches under the Fourth Amendment." Copyright 2001 by United Press International.

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