Scarfo "keylogger", PGP

Peter Fairbrother peter.fairbrother at ntlworld.com
Tue Oct 16 14:30:45 EDT 2001


Capturing keystrokes of email in composition would appear to me to be part
of a "transfer of ..intelligence of any nature transmitted ... in part by a
wire...", and nothing to do with stored email or 2703, but I am not a
lawyer.

-- Peter Fairbrother


> Steven M. Bellovin wrote:
[snip] 
> The problem is that you're thinking like a computer scientist instead
> of like a lawyer...
> 
> Definitions are important in the law.  The wiretap statute (18 USC 2510
> et seq, http://www4.law.cornell.edu/uscode/18/2510.html) defines
> an "electronic communication" as "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, but does not include -
> (A) any wire or oral communication..."  ("Wire communications"
> refers to telephone calls.)  Interception of such transmissions
> is one of the things governed by the wiretap statute; the procedure
> for getting an authorization for a tap is very cumbersome,
> and is subject to numerous restrictions in both the statute and
> DoJ regulations.
> 
> Access to *stored communications* -- things that aren't actually
> traveling over a wire -- are governed by 18 USC 2701 et seq.,
> which was added to the wiretap statute in 1986.  (That's when
> electronic communications were added as well.)  The rules for
> access there are much simpler.  But that section was written on
> the assumption that email would only be stored on your service
> bureau's machine!  In this case, it would appear that we're back to
> the ordinary search and seizure statutes governing any computer records
> owned by an individual.  *But* -- if they're *in the process of being
> sent* -- 2511 would apply, it would be a wiretap, and it would be
> hard to do.  The FBI agents who wrote that keystroke logger are
> well aware of this distinction, and apparently tried to finesse
> the point by ensuring that no communications (within the meaning
> of the statute) were taking place when their package was operating.
> 
> I suppose that someone could make an argument to a judge that
> email being composed is intended for transmission, and that it
> should therefore be covered by 2511.  The government's counter will
> be to cite 2703, which provides for simpler access to some email, as
> evidence that Congress did not intend the same protections for
> email not actually in transit.  I'd have to reread the ruling
> in the Steve Jackson Games case to carry my analysis any further,
> but I'll leave that to the real lawyers.
> 
> 
> 
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