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.
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*.
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.
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!
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.