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<h2>U.S. Refuses to Disclose PC Tracking</h2>

 

By JOHN SCHWARTZ

Invoking a national security law normally used in highly publicized espionage cases, the Justice Department told a federal judge on Thursday that it would not publicly reveal the details of the "key logger" system used to gather evidence in the gambling and loansharking trial of Nicodemo S. Scarfo Jr.

The technology behind the key logger, which was developed by the F.B.I. but is similar to readily available commercial products, has become a central issue in the case against Mr. Scarfo. But, privacy experts say, the technology is also a new disturbance to the delicate balance between the privacy rights of citizens and the growing power of technology to help government invade privacy.

In the Scarfo case, F.B.I. agents installed the monitoring technology, which records keystrokes, on Mr. Scarfo's personal computer under a court-authorized search warrant. Mr. Scarfo's lawyers have argued that the technology resembles a wiretap, and that using the logger without going through the relatively stringent requirements of a full wiretap order may have violated Mr. Scarfo's constitutional rights. But they say that they cannot know for sure unless they know how the logger works.

Judge Nicholas H. Politan of the United States District Court in Newark agreed with Mr. Scarfo's lawyers and on Aug. 7 ordered the government to produce further information about the technology by Aug. 31. The judge also ruled that the government could file a memorandum before then as to why it could not comply. It was that memorandum that was filed on Thursday.

Lawyers directly involved in both sides of the case are under an order not to discuss it, and could not comment.

The government has previously argued that the technology is classified, but until the new filings, it had not officially invoked the Classified Information Procedure Act, which is normally used to prevent criminal defendants like Robert P. Hanssen, the accused spy, from revealing government secrets in open court.

Ronald D. Wigler, an assistant United States attorney, said in court filings on Thursday that the government was seeking to invoke the act in the Scarfo case. The government said it had not withheld any information from Mr. Scarfo that might be helpful in his attempts to get the evidence gathered by the key-logger system rejected.

Revealing the inner workings of the technology, Mr. Wigler has argued, would render it useless in future investigations. He offered instead to provide an "unclassified summary statement" that could be reviewed by Mr. Scarfo's lawyers and "a more complete description" of the technology for the judge's eyes only.

Mr. Scarfo is the son of the imprisoned mob boss Nicodemo S. (Little Nicky) Scarfo Sr. The key logger captured the password that the younger Mr. Scarfo is accused of having used with a popular encryption program to scramble and unscramble records of gambling and loansharking operations.

Mark Rasch, a former Justice Department lawyer who was involved in several cases using the Classified Information Procedures Act, said that the government's use of the law was surprising.

"This is using an elephant gun to swat a fly," he said.

He also said the government's action raised more questions than it answered. Under the law, for example, the government is required to show that it classified the technology in question properly, and did so before it was used in the investigation. "Simply saying `it's classified' is not enough," he said. The government has not yet publicly offered the proof that Mr. Rasch described.

Mr. Rasch, who has consulted with civil liberties groups that are following the case, said that absent such proof, it could be argued that the government had invoked the law as a legal maneuver. If the government classified the technology after the fact, he said: "That would be disingenuous. That would be unconscionable."

David Sobel, the general counsel for the Electronic Privacy Information Center, a policy and advocacy group in Washington, said, "The government elected to use this technique, and should not now attempt to hide its details under the guise of national security."

He added: "It raises very basic questions of accountability. The suggestion that the use of high-tech law enforcement investigative techniques should result in a departure from our tradition of open judicial proceedings is very troubling."