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web posted January 7, 2002

Judge OKs FBI keyboard sniffing

The Justice Department can legally use a controversial electronic surveillance technique in its prosecution of an alleged mobster.

In the first case of its kind, a federal judge in Newark, New Jersey has ruled that evidence surreptitiously gathered by the FBI about Nicodemo S. Scarfo's reputed loan shark operation can be presented in a trial later this year.

U.S. District Judge Nicholas Politan said the last week of 2001 that it was perfectly acceptable for FBI agents armed with a court order to sneak into Scarfo's office, plant a keystroke sniffer in his PC and monitor its output.

Scarfo had been using Pretty Good Privacy (PGP) encryption software to encode confidential business data -- and frustrate the government's attempts to monitor him.

Politan flatly rejected the defense argument that the FBI violated both wiretap law and the Fourth Amendment, saying that the FBI's black bag jobs "suffer from no constitutional infirmity."

"Each day, advanced computer technologies and the increased accessibility to the Internet means criminal behavior is becoming more sophisticated and complex.... As a result of this surge in so-called 'cyber crime,' law enforcement's ability to vigorously pursue such rogues cannot be hindered where all constitutional limitations are scrupulously observed," Politan said.

Scarfo's lawyer said he was "very disappointed" but he could see no way to appeal Politan's decision before the trial takes place. "If we should be convicted, it'll come up on appeal," said Norris Gelman, a Philadelphia attorney representing Scarfo.

Privacy scholars who fear that Politan's ruling will dramatically expand the government's ability to spy on Americans have closely watched the case. If Politan's decision is upheld on appeal, it will grant police broad powers to circumvent privacy-protecting encryption products.

"The decision is disappointing, particularly in light of the fact that the full details of the keystroke logger were not disclosed to the defense," said David Sobel, general counsel for the Electronic Privacy Information Center. "It's an important issue that is likely to form the basis of an appeal should Scarfo be convicted."

For its part, the FBI seems to want to avoid the physical breaking-and-entering that's required to implant a keystroke logger in a suspect's computer. Late last year, news leaked about an FBI project code-named "Magic Lantern" that would install surveillance software remotely using well-known backdoors in browsers, e-mail clients and operating systems.

Ronald Wigler, the assistant U.S. Attorney responsible for the case, said: "There has not been another case of its kind to date that has utilized these methods in conjunction with the way in which we obtained authorization to use these tools."

"(The court decision) doesn't necessarily surprise us because we've been saying all along we never violated his Fourth Amendment rights. We've been saying all along we've never captured any electronic communications that would require us to seek a wiretap order," Wigler said.

The court order from the federal magistrate judge stated that the FBI could "install and leave behind software, firmware, and/or hardware equipment, which will monitor the inputted data entered on Nicodemo S. Scarfo's computer in the target location so that the FBI can capture the password necessary to decrypt computer files by recording the key related information as they are entered."

Defense attorneys had said that the PGP pass-phrase snatching was akin to a telephone wiretap and pointed out that the FBI never obtained a wiretap order. Scarfo's lawyers also claimed the FBI was conducting a general search of the sort loathed by the colonists at the time of the American Revolution and thereafter outlawed by the Fourth Amendment's prohibition of "unreasonable" searches.

Complicating the case is the government's unwillingness to release details on how the keystroke-capturing system works. The government calls the key-logger "a sensitive law enforcement" mechanism that's classified -- and that its details, like the secret locations of bugs and surveillance devices, may be kept from defendants.

Last fall, the Justice Department invoked the Classified Information Procedures Act (CIPA), which allows prosecutors to brief the judge in a secret session from which defense attorneys and the defendant are excluded. That ex parte hearing took place on Sept. 26.

"Pursuant to CIPA's regulations, the United States presented the Court with detailed and top-secret, classified information regarding the (keystroke logger), including how it operates in connection with a modem. The government also demonstrated to the Court how the (keystroke logger) affects national security," Politan said in his decision.

Defense attorneys received only an "unclassified summary statement" with general information about the key-logging system.

The Justice Department says that Scarfo's encrypted file, titled "Factors," contains evidence of an illegal gambling and loansharking operation.

Because Politan is retiring soon, a new judge will take over the case and set a trial date, which will likely take place this year.

Agency puts in security system at head gates of Klamath Reclamation Project

A new security fence, video cameras and motion detectors are taking the place of federal police guarding the head gates of the Klamath Reclamation Project irrigation system.

The $90,000 security system was completed recently around the U.S. Bureau of Reclamation structure that became the center of protests last summer over restricting farm irrigation to conserve water for threatened and endangered fish.

Contract security guards will remain through mid-January, when a final decision will be made on relying solely on the fence, cameras and motion detectors to protect the head gates, bureau spokesman Dave Jones said December 31.

The security system went up after protesters met with authorities the day after the Sept. 11 terrorist attacks and said they would pull out to allow the federal government to concentrate on fighting terrorism.

The bureau spent $750,000 guarding the head gates from July 14 through Sept. 26, when federal police left the site.

Jones said he was not aware of any breaches of the security system.

"We are hoping for a very peaceful new year," he said. "The snowpack building up in the Siskiyous gives us every hope this will not be another contentious year, that we have enough water to meet both the environmental obligations we have as well as our longstanding relations with the farmers who depend on that water."

Because of last winter's drought, there was not enough water to supply farmers after meeting federal requirements for endangered suckerfish in Upper Klamath Lake, the project's primary reservoir, and threatened coho salmon in Klamath River.

Rehnquist blasts Democrats over slow pace of confirmations

In his annual report delivered January 1, Supreme Court Chief Justice William H. Rehnquist demanded that U.S. senators hurry up and confirm President Bush's judicial nominations, citing an urgent need to finish the job because of the threat of terrorism.

It wasn't the first time Rehnquist has griped about sluggish confirmations, but his remarks — aimed at the Democrat-controlled Senate — were harsher and more critical than before. The Democrats have been in power in the Senate since June, when Republican Jim Jeffords left his party to become an independent voting with the Democrats.

"During times such as these, the role of the courts becomes even more important in order to enforce the rule of law," said the Republican Rehnquist in his yearly report on the courts. "To continue functioning effectively and efficiently, however, the courts must be appropriately staffed."

Court records show that there are 94 vacancies in the federal judiciary — about 11 percent of the 853 district, trade and appeals court judgeships. That is the largest number of judgeship openings at the beginning of a year since January 1994, when there were 118.

Rehnquist said senators "ought to act with reasonable promptness and to vote each nominee up or down." He also said the president should choose judges quickly and try to recruit private attorneys for judgeships.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., defended the confirmation pace during what he called a "tumultuous year for the nation and also for the Senate."

Leahy pointed out that President Bush had more choices approved in 2001 than the past two presidents — Democratic President Clinton and Bush's father before him — each had in their first year in office.

Of Bush's 64 judicial nominations, 28 were confirmed, according to Senate records. That compares with 27 Clinton judicial confirmations in 1993 and 15 in the first Bush administration in 1989.

Leahy said the Senate will work to fill remaining vacancies after the holiday break.

White House spokeswoman Anne Womack said that with only about 43 percent of Bush's judicial nominations confirmed so far, "The president has done his part. Now it's time for the Senate to do theirs."

Hindering efforts to find good candidates for federal judgeships, Rehnquist said, are the "inadequacy of judicial pay I have spoken [of] again and again, without much result," and "the often lengthy and unpleasant nature of the confirmation process."

In his 16th annual report since becoming chief after his own difficult Senate confirmation, Rehnquist also discussed courthouse safety. An emergency preparedness office has been created for the federal courts, and a consultant has recommended tighter security at courthouses, background checks on employees and better protection for judges in and out of court.

In the meantime, Rehnquist said, Congress should give the Supreme Court more money for security.

Since the September 11 attacks, he said, federal courts "have gotten back to business, even if not business as usual."

Anthrax contamination forced a week-long closing of the Supreme Court building, and justices heard arguments in another location for the first time since the building opened in 1935.

In addition, Rehnquist said, anthrax-related mail problems might affect the number of cases the court hears this year. Traditionally, justices review about 80 a year.

Federal judge throws out Vieques lawsuit

A federal judge on January 2 dismissed a lawsuit filed by Puerto Rico to stop the U.S. Navy's bombing exercises on the island of Vieques.

Puerto Rico had claimed that the exercises violated the federal Noise Control Act of 1972, as well as its own environmental noise-control laws, but U.S. District Judge Gladys Kessler disagreed.

In her decision, Kessler said she dismissed the lawsuit because the federal Noise Control Act "does not provide plaintiff a cause of action to sue in federal district court for the violations alleged."

The defendants in the case were Defense Secretary Donald Rumsfeld, Navy Secretary Gordon England and Chief of Naval Operations Adm. Vern Clark.

The Navy has trained with live ammunition in Vieques for nearly 60 years, and cites the exercises as vital to its military readiness. Local residents opposed to the training believe the bombings cause ecological damage to the island and damage their health. Supporters dismiss those claims as unfounded and say the Navy's presence is good for the island's economy.

President Bush has said that the Navy will stop using Vieques in May 2003. On July 29, Vieques residents, in a symbolic referendum, voted for the United States to immediately stop using the range.

A series of protests began in April 1999, when an errant bomb killed a civilian security guard. Since then, hundreds of demonstrators have been arrested after trespassing onto military property.

ACLU decries face-recognition tools

Face-recognition technology designed to help catch known criminals proved ineffective during a two-month period, according to a report released January 3 by the America Civil Liberties Union.

Using state open-record laws, the civil liberties organization examined system logs at a Florida police department. It discovered that over a two-month period, the software failed to identify a single person photographed in the department's criminal database, according to the report. It added that the software produced many false identifications.

The ACLU said it also found that the police department, which installed the software in Ybor City, Fla., stopped using the technology in August. The software from New Jersey-based Visionics was halted in use just two months into a 12-month trial.

Representatives from the police department, based in nearby Tampa, were not immediately available for comment.

However, according to the report, Tampa police officials said they stopped using the system because of "disruptions in police redistricting." Police officials planned to resume its operation in the future, the report said.

Visionics, one of the biggest makers of face-recognition systems, disputed statements that the police department stopped using the technology and that it is ineffective.

"Maybe there was no criminal present in Ybor City at the time the system was turned on," said Frances Zelazny, a Visionics spokeswoman.

"This is an investigative tool for law enforcement to use--just like a metal detector at an airport. The system does not go and put handcuffs on anyone. A human operator has to verify the match," she said.

Face-recognition software has become more widespread following the Sept. 11 attacks in New York and Washington, D.C., in which terrorists eluded airport security to hijack four commercial airplanes. As a result, airports including Boston's Logan International Airport and Oakland International Airport, in California, adopted the surveillance technology as a security precaution.

Visionics signed a deal late last year with conglomerate Tyco International to distribute its technology at some 100 of the nation's 450 commercial airports. Even the U.S. Army recently licensed face-recognition technology from rival Viisage Technology to create custom high-security applications.

Such face-recognition software uses biometrics, or the digital analysis of biological characteristics such as facial structure, fingerprints and iris patterns taken through cameras or scanners. The data then matches profiles to databases of people such as suspected terrorists.

But civil rights advocates have cautioned that out-of-date photos and poor lighting could result in numerous misidentifications. They have also warned that the technology's widespread adoption could come at the cost of civilian privacy. Instead of protecting public safety and apprehending terrorists, the technology may become a tool for spying on citizens as they move about in public places, they say.

"Face recognition is all hype and no action," Barry Steinhardt, associate director of the ACLU and an author of the report, said in a statement. "Potentially powerful surveillance systems like face recognition need to be examined closely before they are deployed, and the first question to ask is whether the system will actually improve our safety. The experience of the Tampa Police Department confirms that this technology doesn't deliver."

According to the ACLU report, the Florida system logs showed many false matches between people photographed by police video cameras and images in the department's database of criminals, sex offenders and runaways. It said the software matched male and female subjects and people with significant differences in age or weight.

Visionics disputed those findings.

"They're talking about misidentifications, implying that people were falsely arrested, and that's not the case. There are measures in place that if there's a false alarm, there's someone there to verify the match," Zelazny said. "That the system is blind to race is a privacy enhancing measure."

Security and privacy expert Richard Smith said the report carries a different tune than accolades coming from the companies selling the technology.

"This is not exactly a ringing endorsement of the technology. It's important to look at real-world installations and not just listen to hype from the technology companies," he said.

"Is this the best way to spend the security money at airports? Tampa shows no."

Other government agencies, including the Immigration and Naturalization Service (INS), stopped using the technology after tests. In past years, the INS tested the software to identify people in cars at the Mexico-U.S. border.

Bush: A tax raise? 'Not over my dead body'

A defiant President Bush defended his tax cut on January 5 against claims that it has contributed to the nation's economic slump, vowing "not over my dead body will they raise your taxes."

Bush defended his tax cut before a town hall meeting in Ontario, California, speaking a day after Senate Majority Leader Tom Daschle said the 10-year tax cut passed last year probably made the recession worse.

Critics will seek to stop future phases of the cut from taking effect, the president predicted.

"There's going to be people that say we can't have the tax cut go through anymore. That's a tax raise," he said. "And I challenge their economics when they say raising taxes will help the country recover. Not over my dead body will they raise your taxes."

The pledge brought to mind his father's now famous "Read my lips: no new taxes" campaign promise that the elder Bush later rescinded.

Though the president is not yet running a campaign for reelection, Washington is girding for a crucial midterm election later this year that could tip the balance of power in either the Democrat-controlled Senate or the GOP-led House of Representatives. Losing the House could deeply hurt Bush's chances of pursuing his agenda over the remainder of his term.

With Bush enjoying a surge in popularity for his handling of the war on terrorism in the aftermath of the September 11 terrorist attacks, Democrats have seized on the economic recession as an issue that could resonate with voters in November. Indeed, recent polls show more voters are concerned about the economy than about terrorism.

One day later, Bush responded.

"Somebody told me the funniest thing. They said, 'There's some in Washington saying that the tax cut caused the recession,'" he said, eliciting laughter from the crowd of business leaders, workers and other supporters in the audience. "I don't know what economic textbook they're reading."

Tax cuts, he countered, have the opposite effect. "If you think the economy is going to slow down, the best way to recover is to let people have their own money in their pockets to spend, not the government," he said.

Bush also blamed the September 11 attacks for some of the country's current fiscal woes.

"There is no question that the attacks of September the 11th hurt our economy," he said. "I mean, there is no question about it. ...The attacks affected the confidence of the American people."

Daschle issued a statement after Bush's remarks, saying he did not call for a tax increase.

"No amout of hot rhetoric will get the economy back on track," Daschle said. "Let me be clear, I proposed short-term tax cuts to create jobs and generate investment and long-term fiscal discipline, not tax increases."

Gore ends silence, rejoins 'national debate'

More than a year after conceding the presidential election, Al Gore ended his self-imposed political silence on February 2, criticizing the Bush administration and touting his favorite issues in a speech to fellow Tennessee Democrats.

"For everything there is a season," the former vice president told a friendly crowd at the state Democratic party's kickoff to the 2002 election season. "And tonight, as this new election season opens, I intend to rejoin the national debate."

Shortly before the keynote speech, Gore pledged to help Democratic candidates and train young leaders in the coming months, but said he had yet to decide whether he will run for president again in 2004.

"I am not going to announce that tonight," Gore told reporters. "I have not made up my mind yet."

But the two-term vice president made it clear that he has returned to the political fold, eager to promote his causes, support Democrats and challenge the White House.

"If you're concerned that the present administration will go too far -- and I think they already have -- the best thing you can do is not wait until 2004, but elect Democrats in 2002," Gore said.

The former Tennessee Senator also called the event, as well as recent teaching stints at Middle Tennessee State and Fisk University, another chance to "mend some fences" in his home state, as he promised to do in his December 13, 2000, concession speech.

Bush narrowly defeated Gore in Tennessee to win its 11 electoral votes -- enough to propel him to the overall victory following a lengthy legal battle over Florida's electors.

Sporting a trimmed beard and speaking comfortably Saturday night, Gore reiterated his support for Bush in his fight against terrorism and lauded fellow Democrats for shedding party loyalties and backing the president.

Gore then focused on several issues that were central to his 2000 campaign: the economy, environment and campaign finance.

Claiming he and former President Bill Clinton "made the right decisions" on the economy, Gore said, "It is now clear that our nation's present economy policy is not working."

He blamed the Bush administration for the present recession, evaporation of the projected $4 trillion surplus and cuts in job training, school construction and health care.

"We need a government that lives within its means, invests in the American people and supports tax cuts for the people who need tax cuts," Gore said.

The 2000 Democratic presidential nominee struck a similar tone on the environment, criticizing the White House for rolling back pollution standards, abandoning the Kyoto treaty on global warming and promoting oil drilling in Alaska and the Great Lakes.

Yet the most important issue facing America today, Gore contended, was campaign finance reform.

"Recent events have made it clear that this reform is needed more than ever," Gore said, alluding to charges that bankrupt energy giant Enron -- one of the biggest corporate donors to Bush's presidential campaign -- improperly influenced the White House's energy policy.

"The facts are these: Overwhelmingly, the American people want campaign finance reform. The special interests do not."

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