FBI challenged over cyber spying

Key strokes gave password away

A suspected mobster is at the heart of a legal case testing the limits of cutting-edge cyber-surveillance technology used by the FBI to fight crime.

The son of a jailed crime boss, Nicodemo "Little Nicky" Scarfo, was the target of a sophisticated operation by the bureau that allowed it to record every keystroke on a computer on which gambling records were allegedly stored.

Mr Scarfo was subsequently charged with supervising a $5m-a-year mob-linked bookmaking and loan-sharking operation in New Jersey.

On Monday, his lawyers asked a US federal judge to suppress the evidence.

Before ruling, District Court Judge Nicholas Politan gave attorneys for Mr Scarfo until Wednesday to file supplemental information on their motion to order the FBI to reveal more details of the monitoring system.

The government has until Friday to respond.

Privacy concerns

Privacy experts are watching the case closely as it raises questions over the use of cyber-spying methods, which some critics say are Orwellian.

It gets about as close to the common perception of Big Brother as anything I could really imagine

David Sobel, Epic

"I think it has significant implications for future law enforcement investigations," said David Sobel, of the Washington-based Electronic Privacy Information Center.

"It's the idea of secret government surveillance technology being installed with very little oversight or accountability," he said.

"It gets about as close to the common perception of Big Brother as anything I could really imagine."

Encrypted files

The FBI turned to the high-tech surveillance after it was frustrated in an attempt to gain access to records on Mr Scarfo's computer.

Agents first seized his computer in January 1999. But they were blocked in their attempts to get access to the suspected gambling records as they were encrypted.

Mr Scarfo, known to be computer literate, used the software PGP, Pretty Good Privacy, to encode his records. PGP is a strong, free, encryption program that can be used for e-mail or individual files.

After failing to break the encryption without the password, the FBI surreptitiously bugged the computer to capture it from Mr Scarfo himself.

Armed with a search warrant, agents broke into Mr Scarfo's business and put either a program on his computer or an electronic bug in his keyboard that recorded everything typed by the son of the jailed former boss of the Philadelphia mob.

Wiretapping dispute

One of the key elements in the case is whether the FBI action amounted to a wiretap.

Wiretap laws regulate how and when phone lines and rooms can be bugged. They also require police to minimise communications not relevant to the investigation.

Defence lawyers say that the tap recorded anything Mr Scarfo typed on his keyboard, including private e-mails that were not part of the investigation.

In its application for the original search warrants, the FBI argued federal wiretap laws did not apply as "there will be no wire, oral or electronic communications captured".

The US Government is strongly opposed to reveal details about the operation. Officials argue the surveillance device was a "highly sensitive law enforcement search and seizure technique" and should not be made public.

High-tech crime landscape

Privacy experts say the FBI is using investigative technology that goes beyond existing laws.

Earlier this year, the FBI used a computer eavesdropping technique to ensnare two alleged Russian hackers. They were suspected of hacking into US internet companies, stealing sensitive data and trying to extort money. The case has yet to go to trial.

The case highlighted how the FBI's high-tech crime fighting abilities have evolved.

Concerns have also been raised over another of the FBI's surveillance tools, formerly known as Carnivore and now called DCS 1000.

The system allows agents to monitor suspects' e-mails, instant messages and web browsing.

The US Supreme Court recently reined in one high-tech tactic when it ruled police needed a warrant to use a special heat-sensing device to discover that a man was growing marijuana in his home.