FC: Judge hears U.S. v. Scarfo PGP-spying case; secret trial to come?

From: Declan McCullagh (declanat_private)
Date: Tue Jul 31 2001 - 11:37:45 PDT

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    Some background:
        How Far Can FBI Spying Go?
        By Declan McCullagh (declanat_private)
        9:00 a.m. July 31, 2001 PDT
        NEWARK, New Jersey -- Nicodemo S. Scarfo is not merely an affable
        computer aficionado, the son of Philadelphia's former mob boss and an
        alleged mastermind of a loan shark operation in New Jersey.
        He's also the defendant in a case that could -- depending on how a
        federal judge rules in the next few weeks -- dramatically expand the
        government's powers to spy on Americans or restrict police to
        traditional techniques.
       To hear federal prosecutors tell it, the FBI became so frustrated by
        Scarfo's use of Pretty Good Privacy software (PGP) to encode
        confidential business data that they had to resort to extraordinary
        means. With a judge's approval, FBI agents repeatedly snuck into
        Scarfo's business to plant a keystroke sniffer and monitor its output.
        On Monday, prosecutors and defense attorneys gathered in Newark's
        federal courthouse -- an oasis of modern design and
        skylight-punctuated ceilings surrounded by decaying tenements -- to
        wrangle over whether such an unusual investigative technique violates
        privacy rights.
        U.S. District Judge Nicholas Politan saved his sharpest needling for
        the assistant U.S. attorney prosecuting the case, asking how a court
        could accept the government's earnest assurances that its spy
        technology is permitted by federal law and the Bill of Rights.
       For their part, the Feds believe so strongly in keeping this
        information secret that they've hinted they may invoke the Classified
        Information Procedures Act (CIPA) if necessary. That 1980 law says
        that the government may say that evidence requires "protection against
        unauthorized disclosure for reasons of national security."
        If that happens, not only will observers be barred from the courtroom,
        but the trial could move to a classified location. Federal security
        procedures say that if a courtroom is not sufficiently secure, "the
        court shall designate the facilities of another United States
        Government agency" as the location for the trial.
        Prosecutors said in court documents that while they haven't yet
        invoked those security provisions, "the United States reserves the
        right, however, at some later date to re-assert all CIPA issues." (The
        judge has already imposed a gag order on attorneys in this case.)
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