Tuesday, November 23, 2004

Prof Kerr on KeyKatcher Case

I always enjoy reading Professor Orin Kerr's Computer Crime Case Updates. This week he comments on the dismissed wiretapping case mentioned by SecurityFocus.com and Slashdot. Although some commentary from the likes of Slashdot is helpful, I prefer reading the opinions of a Harvard Law graduate and former Supreme Court clerk.

The case is simple: does use of a keystroke logger constitute a wiretap? The judge in the case said no. I agree with Prof Kerr's assessment that the opinion is wrong. If someone listens in on a phone between the handset and the base unit, it's still a wiretap. It's no different if someone collects keystrokes using a device between a keyboard and CPU.

However, I disagree with Prof Kerr's reasoning concerning interstate commerce. Plenty of judges disagree with me, but I don't think connecting to the Internet makes a system automatically engaged in "interstate commerce." I think the use of the so-called Interstate Commerce Clause allows Congress to pass laws that far exceed their true Constitutional mandate.

If you've never read Prof Kerr's opinions, I recommend you browse his mailing list archives. They're incredibly enlightening.

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