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Federal Judge: Keystroke Logging Isn't Wiretapping 301

Posted by timothy from the not-covered-under-existing-law dept.
TospenJ writes "A federal judge in Los Angeles has dismissed wiretapping charges against a California man who used a hardware keystroke logger to spy on his employer, SecurityFocus is reporting. The court ruled that the device doesn't violate the federal Wiretap Act because it only intercepted signals off a keyboard cable, not an interstate network. The government is asking for reconsideration. Ironically, the judge relied in part on the Scarfo precedent, which allowed the FBI to use such a keylogger without a wiretap warrant."
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Federal Judge: Keystroke Logging Isn't Wiretapping More

Federal Judge: Keystroke Logging Isn't Wiretapping

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  • Either it's a wiretap or it's not.

    Heads the prosecutors win and the FBI loses.
    Tails the prosecutors lose and the FBI wins.

    Looks like tails.
    • Yes, but surely they'll get him on other charges (hacking, spying, whatever..).

    • It amazes me how much the Feds these days want to have total ability to do to us anything that they want, but wish to limit our rights or privacy. A good examples is how the Feds were going to allow the top 2 republicans to look at any tax return of any americans. It is private unless we decide to look.

    • Either it's a wiretap or it's not.

      They didn't say it wasn't a wiretap. They said it wasn't a Federal wiretap because the keyboard cable didn't cross a state line. This is a proper and just ruling.

      Why didn't they just charge him under a state stature? I could think of at least two violations of NYS Penal Law for a keyboard logger -- just off the top of my head and IANAL. Why should we want the Feds to have more power then they already do?

  • Ironic? (Score:4, Insightful)

    by forkazoo ( 138186 ) <wrosecrans@@@gmail...com> on Tuesday November 23, 2004 @01:20AM (#10895557) Homepage
    How exactly is that ironic? Judge upholds precident. Wow, that's an unexpected turn!

    • Re:Ironic? (Score:4, Informative)

      by tsm_sf ( 545316 ) * on Tuesday November 23, 2004 @01:29AM (#10895616) Journal
      Yeah, pretty logical too. A key logger isn't a sniffer.

      It's not up to the judge to (in a case like this) rule on the moral guilt of the defendant, but just to determine if they've broken the applicible law. Now is when we'd see the legislative branch of our government swing into action, were it not populated by scum-sucking filth.
      • Well, it's not Federal jurisdiction anyway, so at least we can expect the California State government to -- oh, wait...

      • Re:Ironic? (Score:2, Interesting)

        by 91degrees ( 207121 )
        Quite.

        I was beginning to think I was the only person to agree with the judge. But it's true. a keyboard logger isn't a wiretap. If it was connected to a network (even a LAN if it was connected to the internet) I'd see it as appropriate, but logging keystrokes is simply too far removed from actually sending that information across a network.

        Presumably, the wiretap legislation also doesn't apply to pointing a spy camera at the user's screen, or a bug in a room with a telephone in either. It's not quit

    • Re:Ironic? (Score:5, Insightful)

      by identity0 ( 77976 ) on Tuesday November 23, 2004 @01:32AM (#10895639) Journal
      It's ironic because the feds want to prosecute this guy, but their previous power grab backfired on them.

      They argued in a previous case that a keylogger was not a wiretap and thus did not require a warrent, now they're trying to argue the other way around when it suits them - but the judge used their previous arguments against them.

      Irony and poetic justice at once, really. But does anyone else think it should be the other way? That is, that it should be considered a wiretap when done by either FBI or private citizen, and regulated accordingly? I don't think people should be snooping on other people's computers any more than the FBI...
      • Oh, I get it. It's like rain on your wedding day, or a free ride when you're already there.

        Don't you think?

        • I thought it was a free ride when you've already paid. Or maybe it was when you're already late. I forget.
      • It's clearly wiretapping because, duh, you're tapping into the wire to record the keystrokes.

        But it's not federal wiretapping, or federal anything, because it doesn't cross state lines or involve a federal official. I don't know why the FBI is even involved.

        • Re:Ironic? (Score:3, Funny)

          by mrchaotica ( 681592 )
          I don't know why the FBI is even involved.
          Oh, I'm sure it has something to do with the... <reads sig> ...never mind, I can't talk about it.
        • It's clearly wiretapping because, duh, you're tapping into the wire to record the keystrokes.

          The definition of wiretapping is more specific than "tapping a wire". For example a pen register (where they essentially log who you talk to) is not considered by the courts to be a wiretap, but it probably falls under the definition you are using.

          But it's not federal wiretapping, or federal anything, because it doesn't cross state lines or involve a federal official. I don't know why the FBI is even involved.

      • No. Well, maybe. (Score:5, Insightful)

        by raehl ( 609729 ) <(moc.oohay) (ta) (113lhear)> on Tuesday November 23, 2004 @04:00AM (#10896184) Homepage
        If they use a keylogger to capture what I type into my online journal, it's not a wiretap. If they use a keylogger to capture what I type to my mother, it's boring, and sometimes profane - but probably also a wiretap.

        This is a case where judges are forced to apply old rules for old tech to new tech. The original intent of the wiretap law was to prevent people from eavesdropping on conversations between two parties without appropriate judicial oversight. So is using a keylogger wiretapping? It depends.

        The real answer is an updated law to reflect the updated technology. Relying on Judges to protect our rights is the sign of a lazy legislature.

        • Re:No. Well, maybe. (Score:3, Insightful)

          by Vellmont ( 569020 )

          The original intent of the wiretap law was to prevent people from eavesdropping on conversations between two parties without appropriate judicial oversight. So is using a keylogger wiretapping? It depends.
          That's true, but the reason the feds are allowed such a law is because only the federal government is allowed to regulate interstate commerce. That's why the scope of this federal wiretapping law is only within the bounds of interstate communications. In this case the content of the communication is i
      • Irony and poetic justice at once, really. But does anyone else think it should be the other way? That is, that it should be considered a wiretap when done by either FBI or private citizen, and regulated accordingly?

        I'm not an expert on US warrants. Does having surveilance equipment in a room require a wiretap warrant, if there's a person holding an interstate phone call in there?

        If it doesn't, then logging a keyboard (room) shouldn't require a wiretap (Internet) warrant. If it does, well then it is a wir

    • Re:Ironic? (Score:4, Funny)

      by knifeyspooney ( 623953 ) on Tuesday November 23, 2004 @02:41AM (#10895925)
      Ironically, the government is prosecuting a case to protect a citizen's privacy!
    • It is ironic when taken from the mythical perspective of "the Establishment"; who adjudicated a legal precident to spy on the unwashed masses with impunity, only to later see the decision used by a member of the unwashed masses to spy on "it" with impunity.

      (And I only belabor the obvious because its apparent so many people need to buy a clue.)

  • Payback (Score:4, Funny)

    by Anonymous Coward on Tuesday November 23, 2004 @01:20AM (#10895558)
    Hmmm.
    Isn't that ironic?
    Now that there's precident, I can start spying on John Ashcroft!
    Payback Be-och!

  • Sounds fine to me. (Score:3, Insightful)

    by Anonymous Coward on Tuesday November 23, 2004 @01:21AM (#10895563)
    But isn't running trojan software to monitor someone illegal by other means anyway? I mean, these overbroad "unauthorized access of a computer system" laws must be good for something.
    • Um, it's a hardware logger, not a software one. Probably one of those things about a cm in diameter and 2cm long that the keyboard plugs in through.

      But yeah, it seems to me that those "unauthorized access of a computer system" laws should be useful in this case. And anyone who's looked at computer-related legislation in the last 15 or so years knows there's a lot of those.

    • Re:Sounds fine to me. (Score:3, Insightful)

      by dretay ( 583646 )
      The point of this case was the scope of Federal Wiretapping Act applies only to information in transit. A trojan, by sending information over an inter-state network would be subject to federal control. Since, however, the keylogger only recorded information entered at the one terminal, and not communications that traveled over state lines, it is not.

  • Wire (Score:3, Insightful)

    by BlackMagi ( 605036 ) on Tuesday November 23, 2004 @01:21AM (#10895564) Homepage
    What part of the word wire do I not understand? My keyboard is attached to my PC with a wire. Don't know about yours...

    • Re:Wire (Score:2, Insightful)

      by om3ga ( 675900 )
      Mine's wireless via RF radio! Would listening on the radio frequency of the wireless keyboard count?
    • Well, in that case, the FBI will be around shortly to install a listening device onto your private Asterisk PBX. Or even a tape recorder onto your 2 tin cans connected by string.

      The point is that your keyboard is not on a public network and therefore is not subject to wiretap regulations, which only cover devices directly connected to public communication networks.

      Is it unethical? Damn right it is. Legal? Apparently so.

    • Re:Wire (Score:4, Informative)

      by bsartist ( 550317 ) on Tuesday November 23, 2004 @01:27AM (#10895604) Homepage
      You understand the word wire just fine - you do not understand the word federal. Federal law applies if the wire crosses state lines - so if your PC is in California and your keyboard in Nevada, federal wiretap law would apply.

      Note that the judge specifically stated that the federal law does not apply here - if California has any laws regarding wire tapping, those still might apply.
      • Oh so if I call Nick down the road wire-tapping laws aren't in effect?
        • Yes, they are. Even though you aren't making an interstate call, you're using an interstate network to make it. It's the nature of the medium that determines the jurisdiction, not the endpoints of an individual connection.

  • Fossils on the Bench (Score:3, Insightful)

    by mordors9 ( 665662 ) on Tuesday November 23, 2004 @01:23AM (#10895570)
    I think one of the main reasons we have these sorts of decisions is the fact that the average judge is so old he has no idea what a computer is or what it is being used for. To say that typing on a keyboard would not possibly be an interstate communication shows a lack of knowledge of what email is, what irc is, what instant messaging is......

    • Re:Fossils on the Bench (Score:4, Insightful)

      by Laivincolmo ( 778355 ) on Tuesday November 23, 2004 @01:26AM (#10895597)
      I don't mean to sound like a flamebait, but the parent has a very good point. Maybe it is time to consider the fact that while with age comes wisdom, with age also comes irrelevance with current day. They might represent the ideals of the people from when they were in their prime, but they certainly do not reflect on today's technological society in general. Maybe voting for justices?
      • There is nothing new with this thing. The young of a society ahve allways though the old ones are out of touch.

      • Re:Fossils on the Bench (Score:3, Insightful)

        by eofpi ( 743493 )
        That sounds to me like the DA didn't do their job right. It's their responsibility to try to convince the judge/jury that the defendant has committed what he's been charged with. Part of that is educating them about nonobvious yet relevant consequences of the applicable law(s). This means demonstrating how keystroke loggers are capable of intercepting email, instant messaging, IRC, MUDs, etc.

        Any reasonable judge should be able to understand that when it's pointed out to them. That doesn't mean it'll sp

      • Re:Fossils on the Bench (Score:4, Insightful)

        by grasshoppa ( 657393 ) on Tuesday November 23, 2004 @01:37AM (#10895670) Homepage
        The subject matter is irrelevant. With age does come wisdom, and the ability to make decisions regarding new technology.

        Youth, on the other hand, lacks wisdom, and is double-wammied by believing they have it.

        Given the choice between the two, guess which I'd choose.
      • Norway has an excellent system where experts are explicitly involved in the judging process. At least in the DeCSS case, they involved two laymen with technical knowledge and allowed each to cast a vote towards the verdict (making them effectively assistant judges to the three handling the trial).
      • Voting for judges is a bad idea. The last thing you want is for judges to have to pander to public opinion in order to secure reelection. It's not good for keeping the judiciary unbiased and focused on the law. (Yes, I know many jurisdictions in the U.S. elect judges. It's a bad idea there too.)
    • Unplug the computer from the network, look, no interstate commerce! *throws that criterion out the window*

    • Re:Fossils on the Bench (Score:4, Insightful)

      by Have Blue ( 616 ) on Tuesday November 23, 2004 @01:37AM (#10895666) Homepage
      The judge in this case may actually be correct. The keylogger was installed between the keyboard and the computer; it only intercepted signals traveling between the CPU and the keyboard. This signal is not transmitted directly onto the Internet on even the lowest level connections; it just causes the I/O controller to create a record in a buffer somewhere and schedule an interrupt for the CPU to handle it. It would no more be interstate communication than watching someone write down a phone number would be traditional wiretapping.
      • The jude was right in making this distinction (IMHO). A keystroke logger isn't capturing e-mail, it's capturing a series of key strokes that may become e-mail. We have laws against somebody tampering with conventional mail. They don't apply to reading the letter over someobody's shoulder as they write it, but only to after it's sealed in an envelope and a stamp affixed. They don't cover taking carbon paper out of a wastebasket, or removing a typewriter ribbon and taking data from it, or scrubbing a pencil a
      • it only intercepted signals traveling between the CPU and the keyboard.

        Well, but if you apply the same reasoning to telephones, you should be able to wiretap any phone as long as the wire is between the actual telephone and the first switch. After all, any information through that wire will only go from the switch to the phone and vise versa. It won't be transmitted directly either - it will be digitized, encoded, stored in packets and embedded in T1 and SDH frames.

    • Re:Fossils on the Bench (Score:5, Insightful)

      by trolluscressida ( 564353 ) on Tuesday November 23, 2004 @01:49AM (#10895720)
      You missed the point of the article entirely.

      The federal law makes wiretapping an interstate transmission illegal. What you type on your keyboard and gets sent to your computer is not going to be an interstate transmission.

      If the wiretapping device had been between say, the computer and router - than the wiretap act may have been properly invoked.

      So you criticize the judge without reading the article or understanding the issue at hand. The judge may be old but he's certainly clever, understands computers, and picked up subtleties which you didn't even know existed.

      Yes there are clueless judges. Doesn't look like this is one of them.

      Score one for the old guys.

      From the article:
      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."
      • So, explain to me how a transmission from your keyboard to the computer and an FBI tap that will eventually send data back to them via a network connection somehow fall under the same law? If nothing else, the FBI keylogging ability, if under the same regulation as "interstate communication", should be considered as wiretapping, and a warrant should be issued...unless they somehow sneak a tap on and off while you take piss breaks, of course.

      • Re:Fossils on the Bench (Score:5, Insightful)

        by plastik55 ( 218435 ) on Tuesday November 23, 2004 @02:33AM (#10895891) Homepage
        The federal law makes wiretapping an interstate transmission illegal. What you type on your keyboard and gets sent to your computer is not going to be an interstate transmission.

        You know, when I make a phone call, it goes from my phone line to the local switch. Then it goes from the local switch to a regional switch. Maybe it makes its way to an interstate line. Who knows? It depends what number I call. But the signal that goes between my house and the local switch, well, that doesn't cross state lines, right?

        So if you tap the phone line from my house to the local switch, the signal you are tapping never crosses state lines. Therefore a federal agency can tap my phone line with impunity.

        See, the network connection is irrelevant to the transmissions, which could have been made on a stand-alone phone with no link at all the a long-distance network. Therefore no local phone taps violate the Wiretap Act.

        Right?

        After all, as defined in the Act, ''electronic communication'' means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce. It's crystal clear.
    • I think one of the main reasons we have these sorts of decisions is the fact that the average judge is so old he has no idea what a computer is or what it is being used for.

      Electricity has been around for a long time, that's all the judge needs to understand in this case.

      To say that typing on a keyboard would not possibly be an interstate communication shows a lack of knowledge of what email is, what irc is, what instant messaging is......

      If your keyboard and computer are located in the same state, the
    • Instead of taking the letter of the law, the law makers should consider the spirit of the law. Computers don't change the intention of the current laws, just the mechanism whereby things are executed.

      For example, employers reading employee email should be considered the same as them opening regular snail-mail. Snooping through an employee's disk space on the server is the same as snooping through their physical locker. Crackers that barge into other people computers are really no different than someone forc

    • Re:Fossils on the Bench (Score:3, Insightful)

      by Xtifr ( 1323 )
      "I think one of the main reasons we have these sorts of decisions is the fact that the average judge is so old he has no idea what a computer is or what it is being used for."

      That may have been the case in the earlier case (where the FBI's claim that a keylogger was not a wiretap was upheld), but in this case, the judge was merely following precedent, which is what a judge is supposed to do. The law is supposed to be consistent. When two judges make conflicting rulings, the result is a mess that usually

  • Of course it's not wiretapping. (Score:4, Insightful)

    by Anonymous Coward on Tuesday November 23, 2004 @01:23AM (#10895571)
    It was keystroke logging. But there should be a law against that.
  • What good is a cake if you can't eat it too?

    /sarcasm

  • Of course (Score:2, Insightful)

    by div_2n ( 525075 )
    When the federal government or a company does it, it isn't wiretapping. But if the common man does it especially to a company or the government in return it is.

    If only people would realize that the depth and breadth of the hipocrisy the current powers that be employ, they would be shocked.

    • Re:Of course (Score:5, Insightful)

      by Phosphor3k ( 542747 ) on Tuesday November 23, 2004 @01:26AM (#10895591)
      What the hell are you talking about?

      The judge ruled the man didn't break any laws. It's not wire-tapping for the FBI, and it's not wire-tapping for civilians.

    • Re:Of course (Score:3, Interesting)

      by MrLint ( 519792 )
      we have a term for this, its called fascism.

      we have a document that is supposed to protect the people of this nation from govt overreaching. its called the constitution.

      However in the current world of neo-con spinmasters, anyone that doesn't go their way is an 'activist judge'. its the typical vilify your antagonist as a method to distract the people from the complex underlying issues.

      For a few dollar more i can install a slippery slope for you.

  • Time to do some pre-typing checks... (Score:3, Insightful)

    by Justin205 ( 662116 ) on Tuesday November 23, 2004 @01:26AM (#10895594) Homepage
    1) Check the keyboard connection. Remove any foreign devices and destroy them, if need be.

    2) Check for any odd or suspicious processes running in the background. Kill processes that don't look right (can be very dangerous though, and impossible if it's running as another user...).

    Maybe if someone had a list of known keylogger processes, it'd be fine to kill processes... Google doesn't turn up anything like that easily. If someone feels like going more in-depth into the search and finding a nice list, feel free.

    Or maybe just use a password-protected laptop, that only you can use. And I mean a good, secure password.
    • svchost.exe lsass.exe services.exe winlogon.exe I have confirmed these all to be dangerous keylogging processers. Terminate them at will!
    • That won't make you entirely safe. If someone has physical access to the keyboard or computer, it's not difficult to install the keylogger inside either. And keyboards often use common microcontrollers: my Logitech Internet Navigator, for example, uses the 68HC08JB8. It could be possible to replace the microcontroller with one that has altered firmware, to log keystrokes pretty much invisibly. Build in a long passphrase to trigger dumping the logged keystrokes, and you're in business.
    • Processes have the capability to hide themselves from the task manager, so checking the task manager alone isn't good enough.
    • Don't type anything important.
    • If the feds planted a trojan it certainly would not show up in your ps -ax.
    • If you're using a windows based system, check the following page:
      http://www.sysinfo.org/startuplist.php

      This has nearly all possible programs that can run during startup on a windows machine, and explains what it is. (Regular proces, virus, trojan, etc..)
      I use it whenever I encounter an unknown process in the task list.
      (It's getting more difficult though... my company installed laptop (illegal to change anything on it), runs nearly 50 processes after a clean startup :( )

  • Wiretaps (Score:2, Insightful)

    by Punboy ( 737239 ) *
    Wiretaps should be any recording device attached to any device or cable that sends or recieves data. After all its a "Wire" "Tap".
    • Wiretaps should be any recording device attached to any device or cable that sends or recieves data. After all its a "Wire" "Tap".

      Think about what you just wrote. I'm sure the MPAA would LOVE for that to be the legal definition of a wiretap. All of a sudden all of our VCRs would become illegal.

      Problem is that the federal government doesn't have the right to step on a state's toes like that.

      If it's not an interstate transmission, it's up to your state to regulate any unauthorized interception of it.
    • They might very well be! However, they aren't all interstate wiretaps.

      It's not an issue of whether what the guy was doing was wrong, it's an issue of whether it's within Federal jurisdiction.

  • Here's the problem... (Score:5, Interesting)

    by Sheetrock ( 152993 ) on Tuesday November 23, 2004 @01:29AM (#10895615) Homepage Journal
    There needs to be a clearcut distinction made between good guys and bad guys in the wiretapping statues.

    If keystroke logging isn't wiretapping, maybe this opens a whole can of worms whereby spyware becomes legal. And if software that sits on my machine without my knowledge relaying my credit card information to a teenager in a foreign country can't be considered wiretapping -- or if the same standard is applied to spyware purveyors as to government agents -- then there's something screwy in the law that needs to be fixed.

    I think spyware needs to be stopped now. And I don't think that the ability to conduct legitimate investigation should be confused in the law with some guy allegedly spying on his employer. Two different things that need to be handled two different ways.

    • But, if your key logging crosses state boundaries, then it would become wire tapping, with all of those problems, right?
      And for the physical device connected to the computer, what if the data you typed crosses state boundaries?

      It is quite hard to do anything on the internet WITHOUT crossing state boundaries at this point.


    • There needs to be a clearcut distinction made between good guys and bad guys in the wiretapping statues.
      If keystroke logging isn't wiretapping, maybe this opens a whole can of worms whereby spyware becomes legal.

      If?
      Two judges agree it's not wiretapping.

      Frankly, I'm more concerned by your assumption that there's a clearcut distintion between "good guys" and "bad guys".
      If the "good guys" think obeying the fourth amendment is a problem, then in my book, they're no longer good guys.

      -- should you belilev

    • See you didn't get it. There are two parts to legitimate investigation. Stop throwing the word legitimate around like it's rhetorically valid in every conversation. The first part of the legitimacy comes from whether there is a need. The second part is whether the method is legal. Now when the FBI argued that a keylogger was not wiretapping they bypassed the whole second part of the legitimacy test which is what in some circles is called sollipsism. The FBI got to define the law which determines whther thei
    • First off, Dr. Spock was the doctor in the US in the 1950's who wrote books on how to raise children. He might have heard the term 'stardate', and maybe even knew what it referred to. However, I doubt he will be making quotes when 'stardate 2822.3' rolls around. Having died in 1998 and all.

      Now if you meant Mr. Spock, first officer of the starship USS Enterprise, also know as NCC-1701, I still doubt you are being accurate. After all why would a Vulcan find it enlightening to quote a Jedi Master? Especiall
  • it only intercepted signals off a keyboard cable, not an interstate network

    The feds usually argue that just being connected to the internet makes the machine involved in interstate commerce. Or actually they rarely even have to argue this. If they lose this and have to show that interception or fraud involved actual interstate network traffic, a lot of convictions will fall.

  • How was the data relayed? (Score:3, Insightful)

    by yorkpaddy ( 830859 ) on Tuesday November 23, 2004 @01:32AM (#10895637)
    does it matter if the physical hardware is local, and then transmits the data over interstate lines. Is it legal if the FBI installs a key logger, that they have to physically access? What about a video camera that doesn't transmit pictures but records them to tape. The tape is then accessed without sending the data over comunication lines or radio, is that legal?

  • Correct ruling (Score:5, Insightful)

    by bobhagopian ( 681765 ) on Tuesday November 23, 2004 @01:33AM (#10895645)
    In Constitutional terms, this is the correct ruling. Federal laws only extend to "interstate commerce," which these days is interpreted to mean "interstate anything."

    I do see the sad humor in the government's hypocrisy, given their arguments in the FBI wiretapping case. However, the real outrage here is that there is no state law which clearly prohibits the interception of electronic signals.

    Remember, folks, the states are supposed to take care of their own business. It's not always convenient, but it's how the Constitution gives primary power to state governments rather than the federal one.
  • I don't the case in question, but if it was local to a person's keyboard wouldn't that be out of FBI jurisdiction?

    (unless of course they were typing something illegal on the internet)

  • Very Interesting Consequences (Score:5, Interesting)

    by logicnazi ( 169418 ) <gerdesNO@SPAMinvariant.org> on Tuesday November 23, 2004 @01:48AM (#10895718) Homepage
    This ruling appears pretty straightforward, after all a keyboard cable barely reaches 5 feet much less across state lines. However, when you realize that the standard in question was simply 'affecting interstate or foreign commerce' the result is much more significant. Especially considering the very broad interpratation of this clause in the past.

    If this ruling is upheld it could have some very interesting consequences relating to governmental power. In general the federal government only has the power to legislate things which affect interstate commerce (plus a bunch of other exception...which we won't consider here). For instance if it was determined that a TiVO does not affect interstate/foriegn commerce the FCC would not have the ability to foist broadcast flags or other copyright protection mechanisms. Similar problems would occur with any attempt to federally regulate copyright protection into the PC.

    Surely, one would think that protecting copyright would affect interstate commerce (whether this is effective or not is an entierly seperate matter). However, this misses the true significance of this ruling. Despite the fact that some of the keystrokes were sent in interstate email he still apparently considered the keyboard itself not to be affecting interstate commerce. For this not to be considered interstate commerce suggests a much stricter/direct standard is being applied.

    Perhaps I am misinterpreting the standard involved. The article wasn't very precisce and perhaps the federal wiretap act actually requires the *communication itself* to be interstate. However, I think this is unlikely as I believe it also covers *in state* wire taps. Although, even if I am correct I imagine this will be reversed on appeal. This is simply a far too drastic change in understanding of what it means to affect interstate commerce.
    • The FCC can tell your TIVO what rules it has to follow in order for it to be allowed to be sold in other states.

      They aren't regulating the USE of a TIVO, just the selling of one.

      So..., the wiretap laws can't get people in trouble for using a keylogger. However, if the Federal Government wanted to do something about it, they would have to settle for making keylogging devices/software illegal for interstate commerce.

      That wouldn't help much....because then 'only the criminals have them.' Just like only t
    • The federal government is expressly provided the ability to regulate copyright by the constitution - no interstate commerce is necessary. They can legislate whatever they would like to protect copyright.

      The FCC, however, has a mandate which only extends to broadcast transmissions (currently, we'll see if that limit remains in place after 4 more years of republicans), so they can't mess with your TiVo yet.

      • Re:Bzzzt, wrong. (Score:3, Interesting)

        by logicnazi ( 169418 )
        Yes, congress is specifically given the right to set up an institution of copyright. If you had cared to read my post I never suggested that copyright law would be thereby overturned. However, nothing in the text of the copyright clause in the constitution appears to give congress any power to regulate devices which might circumvent copyright. Unless you actually have historical precident which suggests the courts have interpreted this clause not only to give congress the power to create copyright but al

  • rawr (Score:4, Insightful)

    by Renraku ( 518261 ) on Tuesday November 23, 2004 @01:54AM (#10895743) Homepage
    Like an earlier poster said.

    Can of worms.

    So monitoring a phone line is wiretapping. What about monitoring the cord between the handset and the phone?

    Same difference here. 9 times out of 10, a computer is used to communicate with another computer in the workplace, or beyond the workplace. Monitoring the connection between the keyboard and the PC is monitoring interstate communication.
  • If I'm typing an e-mail and somebody has a keylogger on my machine, that's not wiretapping. Okay. What about:

    Suppose I'm logging in via telnet to a machine outside my current state, on a shell that sends each character of my password as I type it. Somebody else is logging my keystrokes, and there's a one-to-one mapping between each key I press and each character that gets sent over the network to the remote host. Is that a wiretap?

    Suppose I'm logging in via telnet to a machine outside my current state
  • Does anyone know if it is considered wiretapping to a phone signal between the handset and the base? Or for that matter, a cordless phone between handset and base? I'm guessing it probably would be because the audio signal is directly transmitted. Although in the case of a cordless there may be some A->D->A converting going on.
  • It's mentioned in the SecurityFocus article, but for those too lazy to search for it, the device in question was a KEYKatcher [keykatcher.com].

    Anybody try one of these? Do they work well?
  • If he knew that his own keyboard can be wiretapped by someone. I for one would love to find out what kind of pr0n sitest federal judges go to.
    • You're missing the point. The US government had previously argued that keyboard logging was NOT a wiretap -- that way they could do it easily, without any judicial oversight. If the judge had ruled otherwise in this case, it would have effectively given your government the power to use keyboard loggers against others, while receiving protections from it unavaible to you. With any luck, a ruling like this may force Congress to actually address the issue directly -- this is, in fact, the whole point of his

  • Problems on both sides (Score:5, Insightful)

    by laughingcoyote ( 762272 ) <(moc.eticxe) (ta) (lwohtsehgrab)> on Tuesday November 23, 2004 @03:08AM (#10896013) Journal

    First off, it looks like the FBI, -in this case-, was acting legitimately, with authority from a judge. The fact that they had only a search warrant, rather than a wiretap order, is a technicality, they could have gotten either one with probable cause (which I presume they had, since nothing has been presented to the contrary.)

    However, I am concerned about the broader scope of this precedent. The earlier post and article already mentioned keylogging by everyone from jealous spouses to bosses. Do we not need to draw a line (and demand that our state legislatures do so) by enacting privacy protection for this type of scenario?

    While we decry "activist judges", the fact remains that technology is quickly outpacing the laws made to cover it. Under the current strict interpretations that seem to be in vogue by the courts, laws are obsolete before they get out of their Senate committee. Someone will figure out a new way to do something that flaunts the spirit of a law without -technically- violating its letter.

    Given that, it would seem that judges need to look at the intent of laws as well as their specific, strict letter. It certainly applies that "freedom of speech" applies to email and websites as well as the spoken and written word, even though such things are (obviously) not mentioned, as they didn't exist. Similarly, it would seem to me that the wiretap law is being construed quite narrowly here. The obvious intent of the law is that communication is private and protected from snooping except from legitimate law-enforcement authorities under strict court scrutiny. Bosses and spouses should, quite simply, not be allowed to monitor your communications without your explicit knowledge, consent, and full understanding of what is being snooped and when. Law enforcement agencies should not be allowed to do it except with probable cause and under court scrutiny.

    It seems to me that changing the location or type of monitoring (a hardware or software keylogger rather than a traditional wiretap) still is doing exactly what this law is intended to prevent. I hope, given the judge's very narrow decision, that similar laws will be passed that protect us against similar types of snooping, from law enforcement or anyone else.

  • Um (Score:2)

    by Tokerat ( 150341 )

    "[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."

    So, not only is it better to be able to spy on people's transmissions without a warrant, the best way to do it is before you're sure if they actually ever SENT it or not...

    ...boy, I can sure think of a few e-mails I'm really glad I "X'd" out of instead of sending...

    I hope if this holds up, courts in he future wi

  • The court ruled that the device doesn't violate the federal Wiretap Act because it only intercepted signals off a keyboard cable, not an interstate network

    Who cares about the source of the signals. It *do* send the intercepted signals over an interstate network. But I guess that doesn't matter...

  • From thinkgeek.com (Score:3, Informative)

    by mansa ( 94579 ) on Tuesday November 23, 2004 @10:52AM (#10897959)
    In case you were looking, here's the device [thinkgeek.com].

    Have fun with your self-styled "security experts" at work!

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