Keep It Constitutional

When is an FBI seizure of digital information, even with a search warrant, a violation of the Fourth Amendment? A federal judge in New Jersey is about to answer that question, and his decision could reach far beyond the loan- sharking and gambling charges involved in this case.

The FBI's ability to install a bug in a suspect's computer to record his keystrokes seems at first glance a pretty clever piece of investigative work. It allowed the agents to ferret out a password that got them into encrypted files, unveiling clear-cut evidence of illegal dealings.

But look a little closer at how this evidence was obtained: The FBI agents had a search warrant; they'd already entered the suspect's home before, when they'd discovered the computer files protected by encryption software. They got another warrant to go back in with their keystroke-tracking device.

But were they just searching premises, including the computer, or were they effectively intercepting someone's communication, keystroke by keystroke - not unlike tapping a phone conversation? If the latter, federal law demands a clearance procedure much more rigorous than a simple search warrant.

Why? Because the interception of private conversation poses a direct threat to basic rights of privacy and free speech. If government must listen, it had better have a very good reason that has been thoroughly vetted.

The line between permissible probing and surveillance that erodes constitutional barriers must be maintained, particularly since modern technology tends to blur it. The US Supreme Court clarified that line earlier this year, ruling that police use of thermal-imaging devices without first obtaining a search warrant overstepped the Fourth Amendment. Law enforcement may have to rebuild its case within constitutional boundaries.

That's a cost. But it's relatively small compared with the price of letting high-tech probing, particularly as wielded by agents of government, go unchecked.

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