FITUG e.V. Förderverein Informationstechnik und Gesellschaft

FC: Judge hears U.S. v. Scarfo PGP-spying case; secret t

------- Forwarded message follows ------- Date sent: Tue, 31 Jul 2001 14:37:45 -0400 To: politech@politechbot.com From: Declan McCullagh <declan@well.com> Subject: FC: Judge hears U.S. v. Scarfo PGP-spying case; secret trial to come? Send reply to: declan@well.com

Some background: http://www.epic.org/crypto/scarfo.html http://www.wired.com/news/politics/0,1283,40541,00.html http://www.politechbot.com/p-01545.html

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http://www.wired.com/news/politics/0,1283,45730,00.html

How Far Can FBI Spying Go? By Declan McCullagh (declan@wired.com) 9:00 a.m. July 31, 2001 PDT

NEWARK, New Jersey -- Nicodemo S. Scarfo is not merely an affable computer aficionado, the son of Philadelphia's former mob boss and an alleged mastermind of a loan shark operation in New Jersey.

He's also the defendant in a case that could -- depending on how a federal judge rules in the next few weeks -- dramatically expand the government's powers to spy on Americans or restrict police to traditional techniques.

To hear federal prosecutors tell it, the FBI became so frustrated by Scarfo's use of Pretty Good Privacy software (PGP) to encode confidential business data that they had to resort to extraordinary means. With a judge's approval, FBI agents repeatedly snuck into Scarfo's business to plant a keystroke sniffer and monitor its output.

On Monday, prosecutors and defense attorneys gathered in Newark's federal courthouse -- an oasis of modern design and skylight-punctuated ceilings surrounded by decaying tenements -- to wrangle over whether such an unusual investigative technique violates privacy rights.

U.S. District Judge Nicholas Politan saved his sharpest needling for the assistant U.S. attorney prosecuting the case, asking how a court could accept the government's earnest assurances that its spy technology is permitted by federal law and the Bill of Rights.

[...]

For their part, the Feds believe so strongly in keeping this information secret that they've hinted they may invoke the Classified Information Procedures Act (CIPA) if necessary. That 1980 law says that the government may say that evidence requires "protection against unauthorized disclosure for reasons of national security."

If that happens, not only will observers be barred from the courtroom, but the trial could move to a classified location. Federal security procedures say that if a courtroom is not sufficiently secure, "the court shall designate the facilities of another United States Government agency" as the location for the trial.

Prosecutors said in court documents that while they haven't yet invoked those security provisions, "the United States reserves the right, however, at some later date to re-assert all CIPA issues." (The judge has already imposed a gag order on attorneys in this case.)

[...]

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