May 29, 2017

Keylogging is Not Wiretapping, Judge Says

A Federal judge in California recently dismissed wiretapping charges against a man who installed a “keylogger” device on the cable between a woman’s keyboard and her computer. I was planning to write a reaction to the decision, but Orin Kerr seems to have nailed it already.

This strikes me as yet another example of a legal analyst (the judge, in this case) focusing on one layer of a system and not seeing the big picture. By fixating on the fact that the interception happened at a place not directly connected to the Internet, the judge lost sight of the fact that many of the keystrokes being intercepted were being transmitted over the Net.


  1. PrivacyWatch says:

    The judge’s conclusion seems a logical one. He didn’t determine that key logging was legal, only that the wording of the Federal Wiretap law did not apply to a locally installed hardware based key logger. The man could still be prosecuted under a state law, depding on where the acton occured. Similarly, placing a tape recorder in a room where someone happens to make an interstate phone call is not a federal crime, but a state crime.

  2. The government asserts in United States v. Scarfo that a key-logger is not a wiretap device.

    The government asserts in United States v. Ropp that a key-logger is a wiretap device.

    Well, why not? If light can be a particle and a wave, why can’t key-loggers be both a wiretap device and not a wiretap device? A new era of Quantum Law — where intuition, logic and common sense don’t always work — opens up!

  3. The keystroke recorder may be a local device, but it is not the same as a tape recorder in a room. The logger is a part of the electronic stream of communication, the audio tape recorder physically present in a room is not.

    IANAL, so I don’t know if a tape recorder, or a bug electonically connected to the user side of the telephone interface is a wiretap violation. Is an audio bug in a phone handset a wiretap violation? But if any of these are true, then the logger should be a violation as well.

  4. Max Lybbert says:

    PrivacyWatch has it right. The judge simply decided that a *federal* law couldn’t be used because the facts of the case kept everything inside the state. California has a state law against eavesdropping and such, so this isn’t a big deal. In fact, I’m kind of happy to hear of a judge who rules based on the actual facts of a case instead of how the facts *could* *have* *been*.