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United States v. Scarfo, Criminal No. 00-404 (D.N.J.)

A federal judge in Newark, New Jersey heard arguments on July 30, 2001 on a motion to disclose information concerning the FBI's surreptitious installation on a suspect's computer of a "key logger" that captured the suspect's PGP encryption passphrase. In the first known case of its kind, the defense is seeking discovery that would allow analysis of the technique, which has only been described publicly as "specialized computer software, firmware and/or hardware." The government is vigorously opposing disclosure.

On August 7, the court ordered the government to submit to the defense and the court a report "detailing how the key logger device functions" by August 31. On August 23, the government moved to invoke the Classified Information Procedures Act and provide the defense with only an "unclassified summary" of the report. The defense filed an opposition to that request, which the court considered at a hearing on September 7.

On October 4, the court granted the government's motion for a protective order, denying discovery of classified information. The FBI subsequently provided the defense with an unclassified affidavit purporting to describe the functionality of the "key logger system." The then defense renewed its motion to suppress evidence.

In a decisionissued on December 26, 2001, the court upheld the legality of the FBI's use of the "key logger system" and denied the defense motion to suppress evidence obtained through the technique.

The government and Scarfo entered into a plea agreement on February 28, 2002. As a result, there will be no appellate consideration of the issues raised in the case.

The following documents are available in PDF format:

Application for surreptitious entry and installation(May 1999)

Affidavit in support of application(May 1999)

Order granting application(May 1999)

Application for postponement of notification of surreptitious entry(June 1999)

Order granting postponement of notification and authorizing surreptitious entry(June 1999)

Defense motion for discovery(June 2001)

Defense motion to suppress evidence seized by the government through the use of a keystroke recorder(June 2001)

Government brief in opposition to defendant's pre-trial motions(July 2001)

Defense supplemental brief(August 2001)

Government supplemental brief(August 2001)

Order requiring submission of report "detailing how the key logger device functions"(August 2001)

Government's Request for Modification of Court Order Pursuant to Classified Information Procedures Act(August 2001)

Third Circuit opinion lifting gag order imposed on attorneys(August 2001)

Defense Reply to Gov't Invocation of Classified Information Procedures Act(August 2001)

FBI affidavit re classification of "key logger system" (with cover letter)(September 2001)

Government motion for protective order denying discovery of classified information, and court order granting motion(October 2001)

Unclassified FBI affidavit concerning details of "key logger system"(October 2001)

Defense Supplemental Motion to Suppress Evidence (with supporting affidavit)(November 2001)

Government Brief Opposing Supplemental Motion to Suppress Evidence(December 2001)

Court Order Denying Motion to Suppress Evidence(December 2001)

The following coverage of the case is also available:

Scarfo case could test cyber-spying tactic, Philadelphia Inquirer (December 4, 2000)

FBI surreptitious black bag jobs circumvent encryption products, Politech (December 5, 2000)

FBI Snatches Mob Boss' PGP Passphrase, (December 5, 2000)

FBI Hacks Alleged Mobster, Wired News (December 6, 2000)

Organized Crime Case Raises Privacy Issues, New York Times (July 30, 2001)

Judge to DOJ: Explain Spy Method, Wired News (July 30, 2001)

How Far Can FBI Spying Go?, Wired News (July 31, 2001)

Judge Says FBI Must Reveal Computer Snooping Technique, Reuters (August 7, 2001)

Judge wants FBI to detail secret cyber 'wiretap', Star-Ledger (August 8, 2001)

High-Tech FBI Tactics Raise Privacy Questions, Washington Post (August 14, 2001)

U.S. Refuses to Disclose PC Tracking, New York Times (August 25, 2001)

FBI device sets off alarms (editorial), USA Today (August 29, 2001)

Scarfo's high-tech case ends with plea, Philadelphia Inquirer (March 1, 2002)

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