A trial of an alleged mafia boss will test whether the FBI surveillance teams are entitled to plant keystroke-logging devices on the computers of suspects.
Nicodemo S. Scarfo Jr., 35, the son of the jailed former boss of the Philadelphia mob, faces charges of masterminding a mob-linked bookmaking and loansharking operation.
A key aspect of prosecution evidence was obtained by FBI agents who rigged his computer in order to be able to monitor every keystroke. This was necessary because conventional surveillance on Scarfo, who used to work for a Florida software firm and is considered something of a geek, was frustrated by his use of the encryption program PGP (Pretty Good Privacy).
According to US reports, Scarfo's lawyers will challenge the admissibility of this evidence in a move that will make him the first defendant to challenge covert computer surveillance by the FBI. In a pre-trial motion defence lawyers for Scarfo argued that federal investigators misused a search warrant to install a bugging device on Scarfo's business PC.
Monitoring the keystrokes entered into the machine allowed investigators to find out the password Scarfo used to access an encrypted program which, it was suspected, he was using to store gambling and loan-sharking records.
Civil liberties activists argue that the widespread use of the techniques used against Scarfo extend current wiretap laws and would be open to abuses that violate privacy.
"Anything he typed on that keyboard - a letter to his lawyer, personal or medical records, legitimate business records - they got it all," said Donald Manno, Scarfo's lawyer told The Philadelphia Inquirer.
"That's scary. It's dangerous," he said.
The use of keystroke-logging devices in the Scarfo case was revealed by The Philadelphia Inquirer. However it is not known whether software loaded onto a computer, an attachment linked to the keyboard part of a PC or a 'bug' inside the keyboard was used in the case. The most sophisticated, and least likely to be discovered, of these techniques is the bug.
The case throws up the issue of whether technology is evolving faster than laws regulating the privacy and individuals. It also highlights potential gaps in the capability of the Federal government's controversial Carnivore e-mail monitoring techniques to effectively obtain information from the very types of people it is designed to monitor.
Scarfo faces trial early next year on charges he ran an illegal gambling business that took in more than $2000 a day and that he used extortion to collect loans. ®