Problems with Scarfo

In Scarfo, the court decided that the KLS search was fine, even though it took in more information than the very specific parameters that Judge Haneke had outlined. I’m of several minds about this decision. My gut reaction was that I had a big problem with this, because it seemed to me that the government would be able to use these types of searches as a flimsy search to perform any type of computer searches that it wanted. On the other hand, though, I understand the Court’s logic – how can the FBI be expected to know what the password is if they don’t filter through all the keystrokes logged on the computer (since if they knew what the password was in the first place then it would be completely unnecessary to do this search in the first place)?

Perhaps what I find more problematic is the fact that the government could use other materials that it uncovered via keystroke loggers such as this as evidence, and this strikes me as a bit problematic. The Fourth Amendment isn’t supposed to just allow huge blanket searches by the government without any sort of suspicion. However, if we accept that a search that ostensibly doesn’t exhibit “surgical precision” as OK, then the plain-view doctrine – which itself seems eminently reasonable – would dictate that the government would be able to make use of any sort of evidence it uncovered while doing this type of search. This now seems to me to be more of the problematic type of blanket search that Scarfo claims the government’s search to be.

A mostly unrelated problem, but in the same case, is how the Court seems to define if the Wiretap Statute applies to this case. I think in 2001 it would’ve been very easy to define when Scarfo was transmitting information via a modem and thus via a wire. However, in 2010, when wireless Internet access is the norm and we are basically connected all the time, how would we separate (if it’s even possible to separate) when we are transmitting information over a wire and when we are not? Presumably, even wireless Internet access goes through a wire at some point, or at least this is my understanding. But in today’s world when my computer could be sending information online without my even knowing it (this is not necessarily malicious: automatic operating-system system updates, for instance), then it seems that we really can’t make this distinction, and the aging of the Wiretap Statute seems even more evident.