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Spying on the Mob: United Sta Tes V. Scarfo - a Constitutional Analysis

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Spying on the Mob: United Sta Tes V. Scarfo - a Constitutional Analysis SPYING ON THE MOB: UNITED STA TES V. SCARFO - A CONSTITUTIONAL ANALYSIS Nathan E. Carrell In this day and age, crime and technology have become entwined concepts. Criminals have been using technology to avoid detection, literally cloaking their business dealings through cryptography. In order to compensate for these technological advances, law enforcement has upped its own technological applications. From theuse of infrared photography and DNA testing, to the advent of the Keystroke Logging System, which decipers encryted data, law enforcement has taken a proactice step towards catching tech savvy criminals. More advanced technologies have begun to spring up that have less gliches. These new technologies, particularly the Keystroke Logging System, have implicated several constitutionalconcerns. This note discusses the application of the Fourth 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 will better balance these interests. Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. ... The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled 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 of criminals who seek to use this technology to avoid detection and arrest increases exponentially. Organized crime groups and drug traffickers utilize computers and the Internet to their advantage2 while seeking to cloak 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]. JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2002 them undecipherable.3 Cryptographic software is easily accessible, and criminals can utilize it in a variety of ways.4 Law enforcement, on the other hand, has not stood idle to these developments. Technological advances, including infrared photography and DNA testing, have provided law enforcement officials with new devices to assist in the detection of criminal activity.5 The Federal Bureau of Investigation (FBI) has also evolved by expanding its arsenal of tools to thwart criminal use of the Internet and cryptography. The FBI has developed Carnivore - a tool to intercept e-mail and other electronic communications passing through a data point at an Internet Service Provider (ISP).6 Another tool in the FBI's repertoire is the Keystroke Logger System (KLS) which monitors and records keystrokes entered into a computer.7 This allows the FBI to access passwords entered via keystrokes which are required for deciphering encrypted data. The FBI is currently working on a software version of the KLS. This new software, known as Magic Lantern, can be inserted into a suspect's machine through a computer virus or a common network vulnerability.8 New technology in law enforcement results in new challenges for the courts, not only in determining reliability of the evidence gathered, but also in balancing society's interest in law and order with an individual's constitutionally protected civil liberties.9 In a case of first impression, a federal judge denied a motion to suppress evidence obtained utilizing the KLS. l° The court found that a special warrant pursuant to Title III" is not needed for the KLS because the method used to obtain evidence is not regulated under the statute. 2 The court also rejected an argument 3. Statement for the Record of Donald M. Kerr, Assistant Director Laboratory Division Federal Bureau of Investigation on Internet and Data Interception Capabilities Developed by the FBI, 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 House Statement]. 4. Overview of PGP, at http://www.pgpi.org/doc/overview/ (last visited Feb. 10, 2002). Pretty Good Privacy (PGP) is free for download at http://www.pgpi.org. Id. PGP is used primarily for encryption 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, 91 A.L.R.5th 585, § 2 (2001). 6. Manton M. Grier, Jr., The Software Formerly Known As "Carnivore": When Does E-Mail Surveillance 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), at http://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. No. 1] SPYING ON THE MOB that using the KLS constituted a general search13 in violation of 4 the Fourth Amendment's particularity requirement. This note begins with a short discussion concerning criminal use of technology in modern society and the constabulary's response in developing tools to combat this high-tech criminal activity. I then offer a brief discussion of Fourth Amendment law implicated by use of the KLS in law enforcement, including traditional search warrants, Title III, and non-audio video surveillance. In the analysis section, I discuss constitutional and other legal implications associated with the application of the KLS to gather evidence in light of previous legislative and judicial decisions. Finally, I propose possible judicial and legislative solutions to better protect privacy interests while preserving law enforcement's ability 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 is paralleled by the exploitation of networks, computers "and databases to commit crimes and to harm the safety, security, and privacy of others."'5 "[T]errorists, spies, hackers, and dangerous criminals are increasingly using computers ... to carry out their heinous acts."' 6 Criminals can use computers to 1) transmit child pornography; 2) steal customer information, including credit card and social security numbers, from businesses; 3) commit large-scale frauds; 4) and plan terrorist strikes around the world.17 One tool criminals use to safeguard their data and communications is encryption. 8 Encryption gives Internet users a heightened degree of privacy in Internet communications and a data storage capacity unequaled in the physical world. 9 One of the most common 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. The Committee on the Judiciary 2 (Sept. 6, 2000), available at http://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 his laptop connecting him to Al Qaeda and sent e-mails from Internet cafes. Ben Taylor, Shoe Bomber Link to Al Qaeda Terror Trail, DAILY MAIL, Feb. 4, 2002, available at 2002 WL 3310294. "Ramzi Yousef, the mastermind of the World Trade Center bombing, stored detailed plans to destroy United States airliners on encrypted files on his laptop computer." Kerr Senate Statement, supra note 16. 18. Edward L. Allen, CriminalsAre Tech-Savvy, USA TODAY, Aug. 30, 2001. at 12A. In United States 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 "Reasonable Expectation of Privacy?," 33 CONN. L. REV. 503, 503 (2001). JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2002 uses a two key system with a passphrase to encrypt plain text into ciphertext, and to decrypt the ciphertext back to plain text. ° PGP is such a strong cryptography that it has been said, ". even a billion computers ... doing a billion checks a second2 [could] not decipher the result... before the end of the universe." ' B. Strong Cryptography -Pretty Good Privacy "Cryptography is the science of using mathematics to encrypt and decrypt data. '22 Two types of cryptography exist: conventional cryptography and strong cryptography.23 Conventional cryptography, also known as secret-key or symmetric-key encryption, utilizes one key for both encryption and decryption. 4 PGP and other strong cryptography methods used today utilize a two-key, or public-key, system consisting of a public key, a private key and a passphrase Plain text is encrypted into ciphertext, a mathematical algorithm, using the public key.26 The public key is shared with those who wish to send encrypted data.27 Plain text can only be encrypted with the public key; it cannot be decrypted. 28 To decrypt the ciphertext the corresponding private key is needed.
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