United States District Court,
D. New Jersey.
UNITED STATES,
v.
Nicodemo S. SCARFO, et al.
Criminal Action No. 00-404 (NHP).
Dec. 26, 2001.
Defendant was indicted on gambling and loansharking charges and moved to suppress evidence obtained from his computer. The District Court, Politan, J., held that: (1) search warrant was sufficiently particular to satisfy Fourth Amendment; (2) affidavit containing summary of unclassified information describing law enforcement officer's technique and equipment to monitor computer was sufficient to allow defense to litigate suppression motion, and (3) technique utilized by law enforcement officers to decipher password to suspect's encrypted computer file did not violate wiretap statute.
Denied.
[1] Searches and Seizures 
124
Search
warrant which identified each piece of evidence sought to be linked to crime
being investigated and allowed law enforcement officers to install and leave
behind equipment to monitor inputted data on suspect's computer in specific
location to capture password necessary to decrypt computer files was
sufficiently particular to satisfy Fourth Amendment, despite any over
collection of data. U.S.C.A.
Const.Amend. 4.
[2] Criminal Law 394.6(5)
At hearing
on motion to suppress, credibility of witnesses and weight to be given evidence,
together with inferences, deductions and conclusions to be drawn from evidence,
are all matters to be determined by trial judge.
[3] Searches and Seizures 126
Fourth Amendment's particularity
requirement for warrants exists so that law enforcement officers are
constrained from undertaking boundless and exploratory rummaging through one's
personal property. U.S.C.A.
Const.Amend. 4.
[4] Criminal Law 627.7(3)
Use of
affidavit disclosing only unclassified information regarding equipment used by
law enforcement officers to monitor computer during criminal investigation did
not involve government witness, and, thus, did not implicate Jencks Act
requirement that government disclose prior recorded statements of their
witnesses after each witness testifies on direct examination. 18
U.S.C.A. § 3500(b).
[5] Criminal Law 627.5(1)
Government's
obligation to produce and disclose information during course of the criminal
discovery process is not absolute.
[6] Criminal Law 627.5(1)
Although
typically government owes ongoing duty to disclose information to defense,
Congress has, by statute, carved out exceptions.
[7] Criminal Law 627.6(1)
Affidavit
containing summary of unclassified information describing law enforcement
officer's technique and equipment to monitor computer during criminal
investigation was sufficient to allow defense to litigate suppression motion,
and, thus, defendant was not entitled to full disclosure of information
concerning technique and equipment which was classified within meaning of
Classified Information Procedures Act.
Atomic Energy Act of 1954, §
11(y), as amended, 42
U.S.C.A. § 2014(y).
[8] Telecommunications 1439
(Formerly 372k494.1)
Technique utilized by law enforcement
officers to decipher password to suspect's encrypted computer file did not
operate during any period of time in which computer's modem was activated, and,
thus, did not intercept any wire communications in violation of wiretap
statute. 18
U.S.C.A. § 2510.
[9] Criminal Law 1023(3)
[9] Criminal
Law 1073
Order
denying discovery with respect to suppression motion did not fall within
collateral order exception to final judgment requirement for appeal in criminal
proceedings, and, thus, court would not certify issues arising from order for
interlocutory appeal.
*574
Vincent C. Scoca, Bloomfield, NJ, Norris
E. Gelman, Philadelphia, PA, for Nicodemo S.
Scarfo.
Richard
M. Roberts, West Orange, NJ, for Frank Paolercio.
Ronald
D. Wigler, Assistant United States Attorney, Robert
J. Cleary, United States Attorney, Newark, NJ,
for United States.
THE ORIGINAL OF THIS LETTER OPINION AND ORDER IS ON FILE
WITH THE CLERK OF THE
COURT
POLITAN, District Judge.
Dear Counsel:
This matter comes before the Court on
Defendant Nicodemo S. Scarfo's
("Scarfo") pretrial motion for discovery and suppression of
evidence. The Court heard oral argument
on July 30, 2001 and again on September 7, 2001. Co-defendant Frank Paolercio
("Paolercio") joined in the motion.
The government thereafter moved to invoke the Classified Information
Procedures Act. For the following reasons, the Defendants' motion for discovery
is granted in part and denied in part, and the motion to suppress evidence is
denied.
BACKGROUND
This case presents an interesting issue of
first impression dealing with the ever-present tension between individual
privacy and liberty rights and law enforcement's use of new and advanced
technology to vigorously investigate criminal activity. It appears that no district court in the
country has addressed a similar issue.
Of course, the matter takes on added importance in light of recent
events and potential national security implications.
The Court shall briefly recite the facts and
procedural history of the case. Acting pursuant to federal search warrants, the
F.B.I. on January 15, 1999, entered Scarfo and Paolercio's business office,
Merchant Services of Essex County, to search for evidence of an illegal
gambling and loansharking operation.
During their search of Merchant Services, the F.B.I. came across a
personal computer and attempted to access its various files. They were unable to gain entry to an
encrypted file named "Factors."
Suspecting the "Factors" file
contained evidence of an illegal gambling and loansharking operation, the
F.B.I. returned to the location and, pursuant to two search warrants, installed
what is known as a "Key Logger System" ("KLS") on the computer
and/or computer keyboard in order to decipher the passphrase to the encrypted
file, thereby gaining entry to the file.
The KLS records the keystrokes an individual enters on a personal
computer's keyboard. The government
utilized the KLS in order to "catch" Scarfo's passphrases to the
encrypted file while he was entering them onto his keyboard. Scarfo's personal computer features a modem
for communication over telephone lines and he possesses an America Online
account. The F.B.I. obtained the
passphrase to the "Factors" file and retrieved what is alleged to be
incriminating evidence.
On June 21, 2000, a federal grand jury
returned a three-count indictment against the Defendants charging them with
gambling and loansharking. The
Defendant Scarfo then filed his motion for discovery and to suppress the
evidence recovered from his computer.
After oral argument was heard on July 30,
2001, the Court ordered additional briefing by the parties. *575 In an August 7, 2001, Letter
Opinion and Order, this Court expressed serious concerns over whether the
government violated the wiretap statute in utilizing the KLS on Scarfo's
computer. Specifically, the Court
expressed concern over whether the KLS may have operated during periods when Scarfo
(or any other user of his personal computer) was communicating via modem over
telephone lines, thereby unlawfully intercepting wire communications without
having applied for a wiretap pursuant to Title III, 18
U.S.C. § 2510.
As a result of these concerns, on August 7,
2001, this Court ordered the United States to file with the Court a report
explaining fully how the KLS device functions and describing the KLS technology
and how it works vis-à-vis the computer modem, Internet communications, e-mail
and all other uses of a computer. In
light of the government's grave concern over the national security implications
such a revelation might raise, the Court permitted the United States to submit
any additional evidence which would provide particular and specific reasons how
and why disclosure of the KLS would jeopardize both ongoing and future domestic
criminal investigations and national security interests.
The United States responded by filing a
request for modification of this Court's August 7, 2001, Letter Opinion and
Order so as to comply with the procedures set forth in the Classified
Information Procedures Act, Title
18, United
States Code, Appendix III, § 1 et seq.
("CIPA"). This request,
of course, presented a new wrinkle into what had been an already intriguing
case. Defendant Scarfo objected to the government's request, alleging that the
United States did not make a sufficient showing that the information concerning
the KLS had been properly classified.
In response to Scarfo's objection, the United
States submitted the affidavit of Neil J. Gallagher, Assistant Director,
Federal Bureau of Investigation, dated September 6, 2001. In his affidavit, Mr. Gallagher stated that
the characteristics and/or functional components of the KLS were previously
classified and marked "SECRET" at or around November 1997.
The Court heard oral argument on September 7,
2001, to explore whether the government may invoke CIPA and, specifically,
whether the government had classified the KLS. Although the defense conceded
that the KLS was classified for purposes of CIPA, [FN1] the Court
reserved on that question and ordered the government to provide written
submissions to the Court. The
government then filed an ex parte, in camera motion for the Court's inspection
of the classified material.
FN1. The defense
argued the KLS was not classified "properly." See Transcript of September 7, 2001,
hearing at 6:19-20.
On
September 26, 2001, the Court held an in camera, ex parte hearing with
several high-ranking officials from the United States Attorney General's office
and the F.B.I. Because of the sensitive nature of the material presented, all
CIPA regulations were followed and only those persons with top-secret clearance
were permitted to attend. Pursuant to
CIPA's regulations, the United States presented the Court with detailed and
top-secret, classified information regarding the KLS, including how it operates
in connection with a modem. The
government also demonstrated to the Court how the KLS affects national
security.
After reviewing the classified material, I
issued a Protective Order pursuant CIPA on October 2, 2001, wherein I found
that *576 the government could properly invoke CIPA and that the
government made a sufficient showing to warrant the issuance of an order
protecting against disclosure of the classified information. The October 2, 2001, Protective Order also
directed that the government's proposed unclassified summary of information
relating to the KLS under Section 4 of CIPA would be sufficient to allow the
defense to effectively argue the motion to suppress. Accordingly, the Protective Order permitted
the government to provide Scarfo with the unclassified summary statement in
lieu of the classified information regarding the KLS. Pursuant to Section 6(d)
of CIPA, the Court also sealed the transcript of the September 26th ex
parte, in camera hearing and the government's supporting Affidavits. The government filed with the Court and served
on Scarfo the unclassified summary on October 5, 2001, in the form of an
October 4, 2001, Affidavit of Randall S. Murch, Supervisory Special Agent of
the Federal Bureau of Investigation, Laboratory Division (the "Murch
Affidavit").
Having the benefit of the September 26th ex
parte, in camera hearing and the many supplemental submissions of the
parties, the Defendants' motion for discovery and suppression is now ripe for
resolution.
DISCUSSION
Defendants Scarfo and Paolercio advance
several arguments in moving to suppress certain evidence seized by the FBI. The
Defendants first contend that the KLS constituted an unlawful general warrant
in violation of the Fourth Amendment to the Constitution. In addition, the Defendants, after reviewing
the government's unclassified summary, i.e., the Murch Affidavit, argue that
the Murch Affidavit is inadequate under CIPA and would conflict with the United
States Supreme Court decision of Jencks
v. United States,
353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Lastly, Defendants urge the Court to
suppress the evidence because the KLS effectively intercepted a wire
communication in violation of Title III, 18
U.S.C. § 2510.
I. General Warrant
[1] Scarfo argues that since the government had the ability to
capture and record only those keystrokes relevant to the "passphrase"
to the encrypted file, and because it
received an unnecessary over-collection of data, the warrants were written and
executed as general warrants. This
claim is without merit.
Typically, the proponent of a motion to
suppress bears the burden of establishing that his Fourth Amendment rights were
violated. See United
States v. Acosta,
965 F.2d 1248, 1257 n. 9 (3d Cir.1992) (citing Rakas
v. Illinois,
439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979)). The standard of
proof in this regard is a preponderance of the evidence. See United
States v. Matlock,
415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he controlling burden of proof at suppression
hearings should impose no greater burden than proof by a preponderance of the
evidence.").
[2] It is settled that at a hearing on a motion to suppress,
"the credibility of the witnesses and the weight to be given the evidence,
together with the inferences, deductions and conclusions to be drawn from the
evidence, are all matters to be determined by the trial judge." United
States v. McKneely,
6 F.3d 1447, 1452-53 (10th Cir.1993). See also United
States v. Matthews,
32 F.3d 294, 298 (7th Cir.1994); United
States v. Cardona-Rivera,
904 F.2d 1149, 1152 (7th Cir.1990); *577Government
of the Virgin Islands v. Gereau,
502 F.2d 914, 921 (3d Cir.1974), cert. denied, 420
U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).
[3] The Fourth Amendment states that "no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized."
U.S. CONST. amend. IV. Where a
search warrant is obtained, the Fourth Amendment requires a certain modicum of
particularity in the language of the warrant with respect to the area and items
to be searched and/or seized. See Torres
v. McLaughlin,
163 F.3d 169, 173 (3d Cir.1998), cert. denied,
528
U.S. 1079, 120 S.Ct. 797, 145 L.Ed.2d 672 (2000). The particularity requirement exists so that
law enforcement officers are constrained from undertaking a boundless and
exploratory rummaging through one's personal property. See United
States v. Johnson,
690 F.2d 60, 64 (3d Cir.1982) (citing Coolidge
v. New Hampshire,
403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), cert. denied, 459
U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983).
From a review of the two Court Orders
authorizing the searches along with the accompanying Affidavits, it is clear
that the Court Orders suffer from no constitutional infirmity with respect to
particularity. Magistrate Judge Donald
Haneke's May 8, 1999, Order permitting the search of Scarfo's computer clearly
states that Judge Haneke found probable cause existed to believe that
"Nicodemo S. Scarfo has committed and continues to commit offenses in
violation of Title
18, U.S.C. § § 371, 892-94, 1955 and § 1962." See Judge Haneke's May 8, 1999 Order,
at ¶ 1. That Order further stated that
there was "probable cause to believe that Nicodemo S. Scarfo's computer,
located in the TARGET LOCATION, is being
used to store business records of Scarfo's illegal gambling business and
loansharking operation, and that the above mentioned records have been
encrypted." See Judge
Haneke's May 8, 1999 Order, at ¶ 3.
Because the encrypted file could not be
accessed via traditional investigative means, Judge Haneke's Order permitted
law enforcement officers to "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 F.B.I. can
capture the password necessary to decrypt computer files by recording the key
related information as they are entered." See Judge Haneke's May 8,
1999 Order, at pp. 4. The Order also allowed the F.B.I. to
search for and seize business records in whatever form they
are kept (e.g., written, mechanically or computer maintained and any necessary
computer hardware, including computers, computer hard drives, floppy disks or
other storage disks or tapes as necessary to access such information, as well
as, seizing the mirror hard drive to preserve configuration files, public keys,
private keys, and other information that may be of assistance in interpreting
the password)--including address and telephone books and electronic storage
devices; ledgers and other accounting-type
records; banking records and
statements; travel records; correspondence; memoranda;
notes; calendars; and diaries--that contain information about the
identities and whereabouts of conspirators, betting customers and victim
debtors, and/or that otherwise reveal the origin, receipt, concealment or
distribution of criminal proceeds relating to illegal gambling, loansharking
and other racketeering offenses.
See Judge Haneke's May 8, 1999 Order, at
pp. 4-5.
*578 On its face, the Order is very
comprehensive and lists the items, including the evidence in the encrypted
file, to be seized with more than sufficient specificity. See Andresen
v. Maryland,
427 U.S. 463, 480-81, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976) (defendant's general warrant claim rejected where search
warrant contained, among other things, a lengthy list of specified and
particular items to be seized). One
would be hardpressed to draft a more specified or detailed search warrant than
the May 8, 1999 Order. [FN2] Indeed, it could not be written with more
particularity. It specifically identifies
each piece of evidence the F.B.I. sought which would be linked to the
particular crimes the F.B.I. had probable cause to believe were committed. Most importantly, Judge Haneke's Order
clearly specifies the key piece of the puzzle the F.B.I. sought--Scarfo's
passphrase to the encrypted file.
FN2. The second Order
to search Scarfo's premises issued by Judge Haneke, dated June 9, 1999,
contains identical language as the May 8, 1999 Order,
and merely served to extend the period of the search for another thirty days.
That the KLS certainly recorded keystrokes
typed into Scarfo's keyboard other than the searched-for passphrase is
of no consequence. This does not, as
Scarfo argues, convert the limited search for the passphrase into a general
exploratory search. During many lawful
searches, police officers may not know the exact nature of the incriminating
evidence sought until they stumble upon it.
Just like searches for incriminating documents in a closet or filing
cabinet, it is true that during a search for a passphrase "some innocuous
[items] will be at least cursorily perused in order to determine whether they
are among those [items] to be seized."
United
States v. Conley,
4 F.3d 1200, 1208 (3d Cir.1993). See also United
States v. Carmany,
901 F.2d 76 (7th Cir.1990) (upholding seizure of
unregistered handgun found in filing cabinet while validly executing warrant to
discover evidence relating to cocaine distribution charges) United
States v. Fawole,
785 F.2d 1141, 1145 (4th Cir.1986); United
States v. Santarelli,
778 F.2d 609, 615-16 (11th Cir.1985) (search
warrant entitled agents to search for documents, i.e., records of loansharking
activity, etc., and agents were entitled to examine each document in bedroom or
in filing cabinet to determine whether it constituted evidence they were
entitled to seize under warrant); United States
v. Issacs,
708 F.2d 1365, 1368-70 (9th Cir.), cert.
denied, 464
U.S. 852, 104 S.Ct. 165, 78 L.Ed.2d 150 (1983); United
States v. Christine,
687 F.2d 749, 760 (3d Cir.1982).
Hence, "no tenet of the Fourth Amendment
prohibits a search merely because it cannot be performed with surgical
precision." Conley,
4 F.3d at 1208 (quoting United
States v. Christine,
687 F.2d 749, 760 (3d Cir.1982)). Where proof of
wrongdoing depends upon documents or computer passphrases whose precise nature
cannot be known in advance, law enforcement officers must be afforded the
leeway to wade through a potential morass of information in the target location
to find the particular evidence which is properly specified in the
warrant. As the Supreme Court stated in
Andresen, "the complexity of an illegal scheme may not be used as a
shield to avoid detection when the [government] has demonstrated probable cause
to believe that a crime has been committed and probable cause to believe that
evidence of this crime is in the suspect's possession." Andresen,
427 U.S. at 482, 96 S.Ct. at 2749 n. 10.
Accordingly, Scarfo's claim that the warrants were written and executed as
general warrants is rejected.
*579 II. Jencks Argument
[4] Scarfo next contends that the use of the Murch Affidavit
would pose a direct conflict with the Supreme Court's decision in Jencks
v. United States,
353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). For several reasons,
this claim also lacks merit. [FN3]
FN3. The Court notes
in passing that in a legal memorandum addressing the instant motion submitted
to and received by the Court on August 1, 2001, Scarfo's counsel conceded that
"Jencks remedies do not appear to be directly available...." See
Supplemental Brief of Defendant Nicodemo S. Scarfo, at 15.
The plainest answer to Scarfo's invocation of Jencks
is that it simply does not apply in this context. The Jencks Act, which bears its name from
the famous Jencks Supreme Court ruling, requires the government to
disclose prior recorded statements of its witnesses, when related to the
subject matter of their testimony, after each witness testifies on direct
examination. See 18
U.S.C.A. § 3500(b); United
States v. Weaver,
267 F.3d 231, 245 (3d Cir.2001). Its primary purpose is to allow the defense
to utilize on cross-examination a government witness' prior testimony or
statements to impeach the witness. See
Goldberg
v. United States,
425 U.S. 94, 107, 96 S.Ct. 1338, 1346, 47 L.Ed.2d 603 (1976). Here, the
discovery sought by Scarfo does not involve a government witness, but rather the
KLS device. Hence, no Jencks conflict
arises.
[FN4]
FN4. Neither does a Brady conflict exist, since the
October 2nd Protective Order expressly states that "none of the material
sought to be protected constitutes material that is subject to disclosure under
Brady
v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)." See Protective Order dated October 2,
2001.
As the Court will explain more fully below,
Scarfo will not be "crippled"
in his ability to defend himself in the prosecution of this case if his
discovery request is denied. The Court
has determined that, pursuant to Section 4 of CIPA, the unclassified summary in
the form of the Murch Affidavit will provide Scarfo with all the information
that is necessary to litigate this motion.
[5][6] Defendant Scarfo is also mistaken in asserting that the
government's obligation to produce and disclose information during the course
of the criminal discovery process is absolute.
Although typically the government owes an ongoing duty to disclose
information to the defense, the Congress has, by statute, carved out
exceptions. CIPA is one such example.
III. CIPA
[7] In relation to his argument that the KLS unlawfully intercepted
a wire communication, Scarfo disputes the government's insistence that the
Murch Affidavit is sufficient for purposes of litigating the suppression
motion. Since the Court's October 2nd
Protective Order deemed the Murch Affidavit sufficient for purposes of
adjudicating this motion, Scarfo in essence asks the Court to reconsider that
ruling.
Congress enacted CIPA on October 15, 1980, to
address the issues which accompany criminal prosecutions involving national
security secrets. CIPA establishes
certain pretrial, trial and appellate procedures regarding the handling of
classified information in criminal cases and protects against disclosure of
sensitive, classified information. Section
1(a) of CIPA defines the term "classified
information" as follows:
any information or material that has been determined by the
United States Government pursuant to an Executive order, statute, or
regulation, to require protection against unauthorized disclosure for reasons
of national security and any restricted data, as defined in paragraph *580
r. of section 11 of the Atomic Energy Act of 1954 (42
U.S.C. § 2014(y)).
The term "national security" is
defined in Section
1(b) of the Act as "the national defense and
foreign relations of the United States."
Section 2 allows "any party [to] move for
a pretrial conference to consider matters relating to classified information
that may arise in connection with the prosecution." Section 6(a) sets forth the procedure for
hearing a motion in a case involving classified information:
Within the time specified by the court for the filing of a
motion under this section, the United States
may request the court to conduct a hearing to make all determinations
concerning the use, relevance, or admissibility of classified information that
would otherwise be made during the trial or pretrial proceeding. Upon such a request, the court shall conduct
such a hearing. Any hearing held
pursuant to this subsection ... shall be held in camera if the Attorney General
certifies to the court in such petition that a public proceeding may result in
the disclosure of classified information.
As to each item of classified information, the court shall set forth in
writing the basis for its determination.
Where the United States' motion under this subsection is filed prior to
the trial or pretrial proceeding, the court shall rule prior to the
commencement of the relevant proceeding.
After hearing such a motion, Section 4 permits
the court, upon a sufficient showing, to authorize the United States to
substitute a summary of the information the defendant seeks for the classified
documents. This section also authorizes
the court to seal and preserve in the records of the court the entire text of
the statement.
Section 6(c) also prescribes a similar
procedure for the disclosure of classified information. Under Section 6(c), the government may seek
an order permitting the substitution for the classified information of a
summary statement of the specific classified information. Where the court finds that the summary will
provide the defendant with substantially the same ability to make his defense as would disclosure of the
specific classified information, the court shall allow the government to file
the summary in lieu of complete disclosure of the classified information. Section
6(d) authorizes the court to seal the record of any in camera hearings
held pursuant to CIPA.
Pursuant to CIPA, the United States requested
a hearing in order to block the disclosure of supposedly classified information
concerning the KLS technique. The Court held an in camera, ex parte
hearing on September 26, 2001, to assess the classified nature of the KLS and
the sufficiency of the unclassified summary proposed by the government. Prior to the September 26th in camera, ex
parte hearing, and as expressed during the September 7th hearing, the Court
was not satisfied that the KLS was properly classified as defined by CIPA. Nor
was the Court at the time content with the United States' conclusory and
generalized expressions of concern that revelation of the KLS would compromise
the national security of the United States.
However, as a result of the September 26th in
camera, ex parte hearing, the Court is now satisfied that the KLS was in
fact classified as defined by CIPA. The Court also concludes that under Section
4 and 6(c) of CIPA the government met its burden in showing that the
information sought by the Defendants constitutes classified information
touching upon national security concerns as defined in CIPA. *581
Moreover, it is the opinion of the Court that as a result of the September 26th
hearing, the government presented to the Court's satisfaction proof that disclosure of the
classified KLS information would cause identifiable damage to the national
security of the United States. The
Court is precluded from discussing this information in detail since it remains
classified.
Further, upon comparing the specific
classified information sought and the government's proposed unclassified
summary, the Court finds that the United States met its burden in showing that
the summary in the form of the Murch Affidavit would provide Scarfo with
substantially the same ability to make his defense as would disclosure of the
specific classified information regarding the KLS technique. The Murch Affidavit explains, to a reasonable
and sufficient degree of specificity without disclosing the highly sensitive
and classified information, the operating features of the KLS. The Murch
Affidavit is more than sufficient and has provided ample information for the
Defendants to litigate this motion.
Therefore, no further discovery with regard to the KLS technique is
necessary.
IV. Whether the KLS Intercepted Wire
Communications
[8] The principal mystery surrounding this case was whether
the KLS intercepted a wire communication in violation of the wiretap statute by
recording keystrokes of e-mail or other communications made over a telephone or
cable line while the modem operated. These
are the only conceivable wire communications which might emanate from Scarfo's
computer and potentially fall under the
wiretap statute.
Upon a careful and thorough review of the
classified information provided to the Court on September 26th and the Murch
Affidavit, the Court finds that the KLS technique utilized in deciphering the
passphrase to Scarfo's encrypted file did not intercept any wire communications
and therefore did not violate the wiretap statute, Title III, 18
U.S.C. § 2510. I am satisfied the KLS did not
operate during any period of time in which the computer's modem was activated.
Scarfo's computer contained an encryption
program called PGP (Pretty Good Privacy), which is used to encrypt or scramble
computer files so that decrypting or unscrambling the files requires use of the
appropriate passphrase. According to
the Murch Affidavit, in order to decrypt an encrypted file, the PGP software
displays on the user's computer screen a "dialog box." See Murch Aff., ¶ 3. The user then must enter, via the
keyboard, the "passphrase" into the dialog box. See id. When the proper passphrase is entered, PGP
verifies that the passphrase is correct and, after several steps, leads to the
decryption of the selected file. See
id.
The KLS, which is the exclusive property of
the F.B.I., was devised by F.B.I. engineers using previously developed
techniques in order to obtain a target's key and key-related information. See Murch Aff., ¶ 4. As part of the investigation into Scarfo's
computer, the F.B.I. "did not install and operate any component which would search for and record
data entering or exiting the computer from the transmission pathway through the
modem attached to the computer."
Murch Aff., ¶ 5. Neither did the
F.B.I. "install or operate any KLS component which would search for or record
any fixed data stored within the computer." See id.
Recognizing that Scarfo's computer had a modem
and thus was capable of transmitting electronic communications via the modem,
the F.B.I. configured the KLS to avoid intercepting electronic communications
typed on the keyboard and simultaneously *582 transmitted in real time
via the communication ports. See Murch Aff., ¶ 6. To do this, the F.B.I. designed the
component "so that each keystroke was evaluated individually." See id. As Mr. Murch explained:
The default status of the keystroke component was set so
that, on entry, a keystroke was normally not recorded. Upon entry or selection of a keyboard key by
a user, the KLS checked the status of each communication port installed on the
computer, and, all communication ports indicated inactivity, meaning that the
modem was not using any port at that time, then the keystroke in question would
be recorded.
Murch Aff., ¶
6.
Hence, when the modem was operating, the KLS
did not record keystrokes. It was
designed to prohibit the capture of keyboard keystrokes whenever the modem operated.
See Murch Aff., ¶ 15. Since Scarfo's computer possessed no other
means of communicating with another computer save for the modem, see
Murch Aff., ¶ 6, the KLS did not
intercept any wire communications. [FN5] Accordingly, the Defendants' motion to suppress evidence
for violation of Title III is denied.
FN5. In addition,
since all of the PGP program's functions and operations originated from the
computer's hard drive, all actions involving either encryption or decryption
occurred only within Scarfo's computer, and not on some other networked
computer connected via modem. See
Murch Aff., ¶ 8.
[9] Lastly, because the Court has determined that the Murch
Affidavit is sufficient to argue the suppression motion, Scarfo's request for
the discovery items listed in Dr. Farber's Affidavit is denied. Scarfo also asks, in the alternative, for
the Court to certify these issues for appeal to the Court of Appeals for the
Third Circuit. Although Section 7 of
CIPA provides for interlocutory appeals, it appears to only permit the United
States to appeal in the event of an adverse ruling. And the general statute permitting
interlocutory appeals, 28
U.S.C. 1292(b), deals exclusively with civil
actions. Nor would the collateral order
doctrine permit an interlocutory appeal
here, since this issue is readily reviewable on appeal in the event of a final
judgment. See Flanagan
v. United States,
465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984).
In fact, interlocutory appeals during a
criminal prosecution are typically limited to three narrow classes of
cases: denial of a motion to dismiss
based on the Double Jeopardy Clause, requiring the posting of excessive bail,
and violations of the Speech or Debate Clause.
See United
States v. Miller,
14 F.3d 761, 764-65 (2d Cir.1994) (citing
cases). See also United
States v. Helmsley,
864 F.2d 266, 268-70 (2d Cir.1988) (dismissing
appeal as not falling within any of the three types of criminal cases meeting
the collateral order exception), cert. denied, 490
U.S. 1065, 109 S.Ct. 2063, 104 L.Ed.2d 628 (1989). Consequently, there appears to be no
mechanism by which this Court could certify a question to the Third
Circuit. And even if the Court could
certify this issue to the Third Circuit it would not be inclined to do so.
Let there be no doubt that the courts are
indeed the last bastions of freedom in our society and serve to protect the
individual liberty rights embedded in our Constitution. The right to be free of unreasonable
searches and seizures, the right to privacy and the right to a fair trial are
among the most cherished of these rights.
The Court's ruling herein is in consonance with these treasured
ideals. The Congress has spoken through
CIPA and determined that certain classified pieces of *583 information
implicate national security concerns to such
a degree that disclosure of such information would seriously compromise United
States' national security interests. In
this way, CIPA strikes a balance between national security interests and a
criminal defendant's right to discovery by allowing for a summary which meets
the defendant's discovery needs.
In this day and age, it appears that on a
daily basis we are overwhelmed with new and exciting, technologically-advanced
gadgetry. Indeed, the amazing capabilities bestowed upon us by science are at
times mind-boggling. As a result, we
must be ever vigilant against the evisceration of Constitutional rights at the
hands of modern technology. Yet, at the
same time, it is likewise true that modern-day criminals have also embraced
technological advances and used them to further their felonious purposes. Each day, advanced computer technologies and
the increased accessibility to the Internet means criminal behavior is becoming
more sophisticated and complex. This includes the ability to find new ways to
commit old crimes, as well as new crimes beyond the comprehension of
courts. See Eric J. Sinrod,
William P. Reilly, Cyber-Crimes: A Practical Approach to the Application of
Federal Computer Crime Laws,
16 SANTA CLARA COMPUTER & HIGH TECH. L.J. 177, 178-79 (2000). 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.
Accordingly, the Defendants' motion for
discovery is granted in part and denied in part; specifically, the Defendants' request for the
complete disclosure of the classified information is denied, but the motion is
granted insofar as they are entitled to receive the unclassified summary in the
form of the Murch Affidavit. The
Defendants' motion to suppress evidence is denied. [FN6]
FN6. Two other minor
arguments by Scarfo also fail. The fact
that a Bill called the Cyberspace Electronic Security Act ("CESA") of
1999 died in Congress before being acted upon has no relevance here. Moreover, the fact that the government may
have revealed its "sniffer log program" in an unrelated Seattle case
is of no moment. First, it appears that the copy of the affidavit used in that
case references a software program called "winwhatwhere," which can be
purchased by anyone in retail stores or at "winwhatwhere's"
website. See
www.winwhatwhere.com. Secondly, that affidavit does not reveal any information
at all about how the program works, but rather only states that the program was
used by F.B.I. agents.
CONCLUSION
For the foregoing reasons, the motion to
suppress evidence by Defendants Scarfo and Paolercio be and hereby is DENIED. The motion for discovery by Defendants Scarfo and Paolercio be and hereby
is GRANTED IN PART and DENIED IN PART. Specifically, the
Defendants' request for complete disclosure of the classified information
concerning the KLS is DENIED.
The Defendants are entitled to discovery consisting of the summary in
the form of the Murch Affidavit.
IT IS SO ORDERED.
180 F.Supp.2d 572
END OF
DOCUMENT