The question over the legality of the key-logging software arose in a case over its use by the FBI to decrypt certain files of Nicodemo Scarfo Jr., a suspected mobster facing charges of gambling and loan-shark activities. FBI agents apparently installed the key-logging software on Scarfo's machine when they gained physical access to his computer as part of a search warrant.
US District Judge Nicholas Politan rued in his Newark, New Jersey court that not only was no wiretap order required, but also that the FBI was not required to disclose the specifics of the technology.
Lawyers for Scarfo argued that details of the technology were required to determine if its use was improper. If it accessed on-line transmissions, they said that the FBI should have obtained a wiretap order instead of the search warrants actually used. The FBI denied that the system was used to collect information while a modem was on. However, the prosecution successfully argued that, under the Classified Information Privacy Act, it did not need to disclose full details of the system's operation because to do so would jeopardise ongoing and future investigations and undermine national security.
Scarfo's lawyers say they will appeal the ruling.