1\documentclass[12pt,titlepage]{article}             %Esser's rules: 10-12pt
2\title{Article Review of:\\Big Brother and the Bookie}
3\author{Justin Gombos}
4\date{11/4/2002}
5\begin{document}
6
7  \maketitle
8  \baselineskip=19pt
9
10  \section{Societal impact of the Scarfo case}
11
12  The government has once again over-stepped their power.  Fourth
13  Amendment rights are conveniently tossed out the door as usual, and
14  George Anastasia covers it in his article \textit{Big Brother and
15    the Bookie}.  He does a decent job of informing the public that
16  there is a real concern for privacy issues today.  He illustrates a
17  current threat to the privacy of citizens, and his article is
18  effective.
19
20  The main weakness is oversight of details.  Emphasis in this paper
21  will be on the lacking details.
22
23  \section{Anastasia claims the feds bugged Scarfo's phone}
24
25  The biggest flaw in Anastasia's article comes from his statement
26  that the FBI did not have a wiretap warrant, yet they recorded
27  conversations at the beginning of the investigation in 1999, the
28  same time they seized his computer data and implanted the keyboard
29  logger system (KLS).  The greatest weakness in the prosecutions case
30  stemmed from not having a warrant permitting the FBI to wiretap
31  Scarfo.  Yet Anastasia fails to explain how the FBI justified
32  recording phone conversations of Scarfo \cite{ANASTASIA}.
33
34  An explanation is important here.  While the FBI can always argue a
35  strong point that keyboard monitoring is not covered in the
36  wiretapping regulations, phone conversation monitoring is covered in
37  great detail.  If the FBI illegally monitored Scarfo's phone line,
38  then the defense can suppress all evidence collected in connection
39  to that illegal wiretapping activity.  This also serves as an
40  indicator that the FBI was clearly conducting an illegitimate
41  investigation, thus supporting the defenses motion to suppress
42  evidence connected with monitoring Scarfo's keyboard.
43
44  \section{Technical details on the KLS overlooked}
45
46  Anastasia simply describes the KLS as a sugar cube sized device that
47  is planted in the keyboard and transmits keystrokes to a remote
48  listening station.  An explanation like this will suffice for a
49  typical non-technical reader, however, it's insufficient for
50  critical analysis.
51
52  With Anastasia's explanation, the reader concludes that the feds
53  were collecting every keystroke.  This includes keystrokes
54  transmitted off the premises.  This leads the reader to conclude
55  without doubt that the target was wire-tapped.
56
57  There are a couple reasons why Anastasia would mislead the reader in
58  this way.  It could be to generate hype, or simply out of
59  carelessness.  Maybe this was done to keep the article simple and
60  non-technical.
61
62  The KLS actually turns out to be multiple components concealed in
63  different places, such as the keyboard and within the computer case.
64  This is an important distinction.  According to an affidavit
65  submitted by Randall Murch, one of the components monitors the
66  communications ports and is also in communication with the keyboard
67  implant \cite{RANDALL}.  When a key is pressed, the keyboard device
68  queries the port monitor as to whether the character made it through
69  the port.  If the answer is no, the character is not considered a
70  transmitted character and is recorded.  Otherwise, it's ignored.
71  This is the basis for which the government denies the claim to be
72  intercepting transmissions.
73
74  \section{Sneaky FBI tricks}
75
76  The FBI plotted specifically to circumvent wiretap restrictions in
77  the creation of the KLS.  This motive is absent in Anastasia's
78  report.  The key logger was designed such that the only messages
79  exempt from eavesdropping are those sent in real-time character for
80  character.  Effectively, the FBI has claimed that only instant
81  messaging oriented transmissions are protected from the KLS by the
82  Title III wiretapping regulations.  Email is vulnerable to
83  eavesdropping, and no wiretap warrant is necessary if the
84  interception occurs on the data before or after the data is
85  transmitted.
86
87  In the prosecutions rebuttal to the motion to suppress evidence,
88  they stated that they only need a search warrant to obtain documents
89  from a particular location.  If such documents are faxed before or
90  after interception, it's immaterial and no wiretap warrant is
91  necessary.
92
93  The prosecution concluded without sound reasoning that they could
94  apply this same philosophy to email.  If an email intercepted before
95  or after transmission, it does not fall under the Title III
96  wiretapping regulation \cite{CLEARY}.  It's an absolute outrage that
97  the judge accepted this reasoning.  Almost equally appalling is
98  Anastasia's failure to bring this to light.
99
100  The FBI made an indirect assertion that because there is some lag
101  time between data entry and data transmission, eavesdropping does not
102  constitute wiretapping \cite{CLEARY}.  The prosecutions case hinged
103  significantly on this silly technicality, and this point should be
104  one of the major points discussed in any report regarding the Scarfo
105  case.
106
107  \section{Setting the standard}
108
109  Using technology, the feds have conceived a method for circumventing
110  their responsibility in obtaining proper warrants for wiretaps.
111  They can now intercept email messages without the burden of seeking
112  wiretapping approval and without regard to the Fourth Amendment.
113
114  \section{General warrant}
115
116  When the defense motioned for suppression of evidence, another
117  strong point relates to general warrants.  Investigators cannot
118  simply rummage through someone's property looking for something that
119  can be used against them.  A search must be focused with an
120  expectation of finding a specific piece of evidence.  Anything else
121  discovered must be ignored.  ``A general warrant is described as one
122  that authorizes 'a general, exploratory rummaging in a person's
123  belongings,''' \cite{GELMAN}.
124
125  Cleary argued that investigators recorded a minimal number of
126  keystrokes to obtain Scarfo's password \cite[p.20]{CLEARY}.  He
127  sited cases where it has been generally accepted to look through
128  items that are not part of the search if necessary to uncover an
129  item that is targeted in a search.  For example, if they are
130  searching for a document that is at the bottom of a drawer, it's
131  acceptable to look at other documents in the drawer long enough to
132  determine if they are the document in question.
133
134  Both the defense and Anastasia failed to mention that the
135  investigators had alternative options available for capturing the
136  password without capturing unnecessary information.  The KLS
137  captured all keystrokes.  The FBI was aware that it was a PGP
138  pass-phrase that needed to be captured.  They could have easily
139  installed a software or hardware device that detects a PGP
140  pass-phrase prompt, and only record the keystrokes that followed
141  before enter was pressed.
142
143  Instead, the FBI captured everything, and because they captured more
144  information than necessary, the defense could have made a case
145  against them.  The defense did not address the prosecutions
146  statement disclaiming the existence of a general warrant, and
147  weakened their case.
148
149  \section{Anastasia's article--- adequate for casual non-technical readers only}
150
151  George Anastasia's article \textit{Big Brother and the Bookie}
152  provides a decent summary of the U.S. governments case against
153  Nicodemo Scarfo, but overlooks some important key points in the
154  interest of entertaining the casual reader.  He supplies irrelevant
155  details such as Scarfo's illegal video poker machines, details about
156  his father and other mobster activity, and discusses how Scarfo
157  dealt with rodents in his house.
158
159  If Anastasia's goal was ``infotainment,'' he achieved it.  If his
160  goal was to make the general public aware of the governments
161  Orwellian domestic spying activities, he achieved it.  However,
162  critical readers were left at a loss for details about how the
163  government got away with violating Scarfo's Fourth Amendment rights.
164  As a Fourth Amendment advocate, I became tired of hearing Anastasia
165  go on about what happened, with little explanation as to how it
166  happened.  Reading the court documents was necessary in filling in
167  the blanks as to how the government got away with disposing of
168  Scarfo's Fourth Amendment right.
169
170  While misuse of the latest FBI gadget cost Scarfo 33 months of
171  incarceration, we all pay the price of reduced civil liberties.
172
173\begin{thebibliography}{}
174
175\bibitem[Anastasia, 2002]{ANASTASIA}
176Anastasia, G. (2002).
177\newblock Big brother and the bookie: how the feds turned top-secret spy
178  technology against the son of a mafia don--and made a low-level wiseguy into
179  a poster boy for the fourth amendment.
180\newblock {\em Mother Jones}.
181\newblock http://www.motherjones.com/magazine/JF02/mafia.html.
182
183\bibitem[Cleary, 2001]{CLEARY}
184Cleary, R.~J. (2001).
185\newblock Brief of the united states in opposition to defendant scarfo's
186  pretrial motions.
187\newblock http://www2.epic.org/crypto/scarfo/gov\_brief.pdf.
188\newblock Retrieved November 3, 2002.
189
190\bibitem[Gelman and Scoca, 2001]{GELMAN}
191Gelman, N.~E. and Scoca, V.~C. (2001).
192\newblock Defense motion to suppress evidence seized by the government through
193  the use of a keystroke recorder.
194\newblock http://www2.epic.org/crypto/scarfo/def\_supp\_mot.pdf.
195\newblock Retrieved November 3, 2002.
196
197\bibitem[Murch, 2001]{RANDALL}
198Murch, R.~S. (2001).
199\newblock Affidavit of randall s. murch.
200\newblock http://www2.epic.org/crypto/scarfo/murch\_aff.pdf.
201\newblock Received on November 3, 2002.
202
203\end{thebibliography}
204
205\end{document}
206