[IP] Judge dismisses keylogger case

[David Farber <dave@farber.net>]

Begin forwarded message:

From: Peter Lowe <pgl@yoyo.org>
Date: November 23, 2004 3:18:14 PM EST
To: dave@farber.net
Subject: Judge dismisses keylogger case

[ For IP, if you like. ]

Via Slashdot.

http://www.securityfocus.com/news/9978

SECURITYFOCUS NEWS	 	
 	


	Judge dismisses keylogger case

	By Kevin Poulsen, SecurityFocus Nov 19 2004 6:40PM
	A federal judge in Los Angeles has dismissed charges against a
	California man who used a keystroke logger to spy on his
	employer, ruling that use of such a device does not violate
	federal wiretap law.

	Larry Ropp, a former claims adjuster for a U.S. insurance
	company, was caught last year using a "KEYKatcher" brand
	surveillance device on a secretary's computer while secretly
	helping consumer attorneys gather information against his
	employer, Bristol West Insurance Group. The KEYKatcher attaches
	inline with a keyboard connector, and stores every keystroke in
	an internal memory for later retrieval.

	Last March a grand jury in Los Angeles indicted Ropp, in what
	prosecutors trumpeted as the first federal criminal prosecution
	for the use of a hardware keystroke logger. The indictment
	charged a violation of the federal wiretap statute, which makes
	it illegal to covertly intercept electronic communications
	transmitted "over a system that affects interstate or foreign
	commerce."

	Prosecutors maintained that the tapped PC was covered by the
	statute because it was connected to Bristol West's national
	computer network, and the secretary had composed electronic mail
	messages on it.

	But district court judge Gary Feess disagreed, and last month
	granted a defense motion to dismiss the indictment. Feess ruled
	that the interception of keystrokes between the keyboard and the
	computer's CPU did not meet the "interstate or foreign commerce"
	clause in the federal Wiretap Act, even if some of those
	keystrokes were banging out e-mail. "[T]his court finds it
	difficult to conclude that the acquisition of internal computer
	signals that constitute part of the process of preparing a
	message for transmission would violate the Act."

	"The network connection is irrelevant to the transmissions,
	which could have been made on a stand-alone computer that had no
	link at all to the internet or any other external network,"
	Feess wrote. "Thus, although defendant engaged in a gross
	invasion of privacy ... his conduct did not violate the Wiretap
	Act. While this may be unfortunate, only Congress can cover
	bases untouched."

	The court based its decision in part on a controversial ruling
	by the First Circuit Court of Appeals earlier this year that
	threw out wiretapping charges against Branford Councilman, a
	former vice president of an online bookseller who provided
	customers with free e-mail accounts, then set up a system that
	made covert copies of some messages for his later perusal. Feess
	found that here, as in the Councilman case, the e-mail was not
	intercepted as it traveled over the network.

	Electronic privacy groups have joined with government
	prosecutors to try and overturn the Councilman ruling, which is
	now under review by a larger panel of judges.

	The court also cited a 2001 case in which a federal judge in
	Newark, New Jersey ruled that the FBI did not violate the
	Wiretap Act when it installed a covert keylogger on the computer
	of organized crime suspect Nicodemo Scarfo. In that case the FBI
	assured the court that that its keylogger had been configured to
	stop recording keystrokes when Scarfo connected to the Internet.

	In an interview with SecurityFocus following his indictment,
	Ropp admitted to using the keylogger, which he said he'd
	purchased off the Internet. But he defended his office
	skullduggery as a necessary evil to expose improper
	anti-consumer practices at the company, which had previously
	been sanctioned for illegally canceling some customers'
	automobile insurance policies. "The FBI themselves use
	keyloggers quite a bit," Ropp said. "Here, I'm a whistleblower,
	and I'm getting the shaft."

	Prosecutors filed a motion last week asking the court to
	reconsider the Ropp ruling. Ropp's attorney, federal public
	defender Firdaus Dordi, said he couldn't comment on the decision
	until the judge rules on that motion.

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