Ending the possibility for a showdown in higher courts between the U.S. Federal Bureau of Investigation (FBI) and privacy advocates, accused loan shark Nicodemo S. Scarfo Jr. pleaded guilty in a New Jersey federal court on Thursday to a charge of illegal gambling.
Federal prosecutors charged Scarfo with racketeering, illegal gambling and loan sharking in 2000, and described him as being a member of the Mafia. The case took on broader significance when the government introduced evidence gained from secretly installing a keystroke-logging tool on Scarfo's computer in order to crack the PGP (Pretty Good Privacy) encryption on one of his files.
Defense attorneys tried to suppress the evidence as unconstitutional, and requested details about the workings of the keystroke-logging tool in order to prove that it violated the U.S. Constitution's Fourth Amendment protection against unreasonable search and seizure.
But prosecutors kept specific details about the logger secret by successfully invoking the Classified Information Protection Act, asserting that the government has a compelling national security interest in keeping the technical details of the system from public view.
U.S. District Court Judge Nicholas H. Politan rejected the defense's requests to suppress the keystroke evidence in December shortly before retiring and handing the case off to U.S. District Judge Joel Pisano, who heard Scarfo's plea on Thursday.
With the guilty plea, privacy advocates will have to wait for another case in order to get a higher court to hear the constitutional challenge to the government's use of the technology, said David Sobel, general counsel to the Electronic Privacy Information Center watchdog group in Washington, D.C.
"From a legal perspective, (the issues) continue to be resolved at levels about the District Court of New Jersey," Sobel said. Without being heard at a higher appellate court, the case sets no precedent beyond the New Jersey courtroom. And without more rulings from judges about the use of new surveillance technology in this or other jurisdictions, it may take a long time for a case to reach the U.S. Supreme Court.
"We know that Carnivore (the FBI's controversial e-mail surveillance tool) has been in use for two years now, and there hasn't been a case where evidence gathered with it has been used in court."