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FBI Tampers with Alleged Mobster's PC to Gather Evidence

According to documents unsealed by a federal court in New Jersey, in the summer of 1999 FBI agents obtained a court order to break into the Essex County offices of racketeering suspect Nicodemo S. Scarfo Jr. and install software on his computer to that would relay all keystrokes entered on the PC to FBI investigators.

The FBI told the court it needed the unusual request to bypass PGP encryption on Scarfo's computer, which investigators believed held damning information about Scarfo's alleged illegal activities.

After compiling enough evidence via the keystroke tap, the FBI charged Scarfo with loansharking, racketeering, and running an illegal betting operation.

Shortly after the documents were unsealed, The Philadelphia Inquirer detailed a conversation with Scarfo's former attorney Donald F. Manno, who said he was preparing a motion in October to challenge the legality of the case when he was barred from representing Scarfo because he had represented a client who was scheduled to testify for the government against Scarfo.

When contacted Wednesday, Manno said he could not comment on the case, as Judge Nicholas H. Politan had issued a gag order against all of the parties to the case in a proceeding on Tuesday, Dec. 5.

Court transcripts obtained by Newsbytes indicate Politan was less than pleased to first hear about the motion in the Inquirer story.

"You know, I don't want people to tell me I got a cutting-edge cyberspace, whatever, when I haven't seen a piece of paper that reflects anything about this case," Politan said, referring to comments made by Assistant US Attorney Ronald D. Wigler, a prosecutor in the case. Wigler had told the Inquirer that he expected the FBI's surveillance methods would be challenged in a pretrial defense motion and that arguments could establish new case law.

"This is not Johnny Cochran's heaven here, I'm sorry," Politan said. "I am not anti-press. I am pro-press. But I think it's fundamentally unfair to start the trial in the press."

David Sobel, general counsel for the Electronic Privacy Information Center (EPIC), said US Attorney Wigler was right on the money, noting that in August 1999, the Justice Department proposed the legal recognition of such collection techniques in the Cyberspace Electronic Security Act. Among other things, the Act would have allowed federal investigators to obtain an order to secretly search a residence without having first to serve the suspect with the search order.

Under pressure from privacy and public interest groups, however, the Clinton administration eventually backed away from the proposal.

"We think this raises serious constitutional issues, and that the Justice Department acknowledged it probably doesn't have the authority to do this sort of thing when it went to Congress and asked for such powers," Sobel said. "We've always suspected this sort of thing goes on with the FBI, but we've never had concrete evidence of it until now."

But Craig Sorhum, a former member of the FBI's national computer crime squad - now with the FBI's National Infrastructure Protection Center (NIPC) - said the courts have approved the practice for years now, and that the fundamental statute is no different simply because it is now being applied to computers.

"This isn't one bit different from conducting a regular search warrant," Sorhum said. "It's just part of the evidence gathering process that law enforcement uses when there's no other means to get the evidence you need but you have sufficient probably cause to convince a judge that this is the only way to do it."

In Tuesday's court proceeding, Scarfo attempted to explain to the judge why he still did not have an attorney to replace Manno, citing scheduling conflicts and a lack of funds. Judge Politan gave Scarfo until Jan. 11 to appear before the court with a new attorney.

The judge also gave Manno's former lawyer the option of appealing the gag order to the Third Circuit Court of Appeals.

"You have a right to go the Third Circuit. If you want to, be my guest," Politan said. "You're entitled to say the judge is wrong, right, praise me or damn me. Doesn't matter."

Justice Department officials were unavailable for comment on this story.

Reported by Newsbytes, www.newsbytes.com.

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