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Whopper of the Week: Robert Mueller

Timothy NoahPosted Friday, Aug. 10, 2001, at 2:25 PM ET

"Sen. Maria Cantwell: I don't know if you saw [the July 30] New York Times article about the organized crime case and the concerns about privacy there, but one of the issues that has been raised is what the new process has been in which the FBI undertook the investigation in this case against Mr. Scarfo's business. And basically the FBI has used a new key logger system that is calling into question--and I guess I would frame this in the perspective of this is the second time we've seen in a court case the violation of privacy.

"In fact, Justice Scalia was quoted in the article basically saying, What limits are upon this power of technology to shrink the realm of guaranteed privacy? and that the court has to confront this fundamental issue.

"So my question is, are you going to make available the information about how this key logger technology worked?

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"FBI Nominee [since confirmed] Robert Mueller: I'm not familiar with that new technology [italics Chatterbox's], have not had occasion to use it in our district. I read the same article that the senator read, with interest, because it was the first I'd ever heard if it [italics Chatterbox's]. Until I know more about it, I really don't think I can commit one way or the other.

"I do believe when there are advances in technology that it is important to balance the privacy interests affected with the investigative take that you might get from that technology. I'm not familiar with the circumstances of this case, and I'm not familiar with the technology [italics Chatterbox's]."

--Transcript of Mueller's confirmation hearing before the Senate Judiciary Committee, July 31.

"The CERT Coordination Center wishes to thank Robert S. Mueller III, Scott Charney and Marty Stansell-Gamm from the United States Department of Justice for their help in preparing this Advisory."

--Note at the bottom of a 1992 memo, last revised in 1997, explaining the FBI's views of what the law does and doesn't allow with regard to "keystroke logging." First reported by Thomas C. Greene in The Register, a U.K.-based infotech publication.

Commentary: It's possible that when Mueller said he was "not familiar with that new technology," he was referring to the particular key logger technology described in the July 30 Times piece cited by Cantwell. (The Times article, written by John Schwartz, relates how the FBI used key logging to nab Nicodemo Scarfo Jr., who's been indicted for running gambling and loan-sharking operations for the Gambino family.) The Times story notes the FBI's refusal to "say whether the system was a hardware device or purely software." Conceivably, Mueller was merely trying to convey that he didn't know, in this instance, which it was. But if that were true, why wouldn't Mueller say, "Although I know a bit about key logger technology, I'm not familiar with whatever specific device was used in the Scarfo case"? It seems more likely that Mueller, who was surely aware that the judge in the Scarfo trial is trying to compel the FBI to reveal details about its key logger system, was deliberately playing dumb on the entire subject of key logging.

Got a whopper? Send it to . To be considered, an entry must be an unambiguously false statement paired with an unambiguous refutation, and both must be derived from some appropriately reliable public source. Preference will be given to newspapers and other documents that Chatterbox can link to online.

Whopper Archive:

Aug. 3, 2001: Barbara Olson
July 27, 2001: Jeffrey Archer
July 20, 2001: George W. Bush
July 13, 2001: George W. Bush
July 6, 2001: Sumner Redstone
June 29, 2001: David Brock
June 22, 2001: Edmund Morris
June 15, 2001: George W. Bush
June 8, 2001: Nepali Prince Regent (subsequently, King) Gyanendra
June 1, 2001: Mary McGrory
May 25, 2001: Ari Fleischer
May 18, 2001: York, Pa., Mayor Charles Robertson
May 11, 2001: Ted Olson
May 4, 2001: Rear Admiral Craig Quigley
April 27, 2001: Ben Affleck
April 20, 2001: South Carolina state legislator Chip Limehouse
April 13, 2001: Gray Davis
April 6, 2001: Sumner Redstone
March 30, 2001: Spencer Abraham
March 23, 2001: George W. Bush, Rep. Jennifer Dunn, and/or the Treasury Department
March 16, 2001: George W. Bush
March 9, 2001: Russ Freyman, spokesman, National Association of Manufacturers
March 2, 2001: Paul O'Neill
Feb. 23, 2001: Sen. Hillary Rodham Clinton
Feb. 16, 2001: Oscar spokesman John Pavlik
Feb. 9, 2001: Lynne Cheney
Feb. 2, 2001: Bobby Thomson
Jan. 26, 2001: Denise Rich

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Timothy Noah is a senior writer at Slate.

COMMENTS

Reader Comments From The Fray:

While many of us no doubt enjoy some degree of visceral delight in seeing an FBI nominee squirm under questionaing from the Senate, I have to point out that Chatterbox's "Whopper" on Robert Mueller is awfully misleading.

In his Senate testimony, Mueller was asked about the "key logger technology" that was used in the Scarfo case in New Jersey. Although the specifics of that "key logger" remain secret, and indeed are the subject of ongoing litigation, news reports and court filings indicate that the basic gist of this technology was this: the "key logger" was a piece of software or hardware or a combination of both (I don't know which, and the FBI isn't saying) that monitored the keystrokes being typed on the keyboard attached to Scarfo's PC. That is, it "sits" (literally, or more likely, figuratively) between Scarfo's keyboard and the CPU of Scarfo's PC, listening and recording each keystroke typed on that keyboard, whether Scarfo was working on a spreadsheet, or typing in a word processor, or playing endless games of Tetris into the wee hours (in which case, I'm sure the FBI grunts enjoyed reviewing page after page of logs showing nothing but arrow keys).

By contrast, the "keystroke logging" or "keystroke monitoring" discussed in the 1992 CERT advisory paper referenced in this week's Whopper refers to an entirely different set of circumstances (and technologies). The CERT paper discusses whether, and under what circumstances, it may be legal for the owner of a server or system (e.g. a UNIX system with multiple users, or a mainframe) to monitor and record the incoming keystrokes of intruders (hackers/crackers) who connect to the system without authorization (for example, by using a bogus username and password). The CERT paper advises system administrators to set up their systems to display a banner upon any user's entry into the system that notifies the user that keystroke monitoring may occur.

Perhaps the distinction between the "keystroke logging" to which Senator Cantwell was referring, and that referenced in the CERT paper, is best explained by analogy. The first type of keystroke logging (the type at issue in the Scarfo case) would be akin to planting a "bug" in someone's office that records everything that is said in the room. On the other hand, the "keystroke logging" discussed in the CERT paper can be likened to some large corporation recording all (or some select sample) of the incoming telephone calls to its customer service lines. (And, as the CERT paper advised sysadmins to display banners advising users of this type of recording, so do large corporations "greet" us poor callers with reminders that "calls may be recorded for quality assurance purposes.")

Despite the use of the confusingly-similar terms "key logger" and "key logging," Sen. Cantwell and the CERT paper were discussing different scenarios that involve different types of legal analysis, and different types of technology. Calling Mueller to task for claiming he doesn't know about the Scarfo "key logging" technology (even though he contributed to the CERT paper on another type of "key logging") would be like impugning the corporate information
systems guy (who oversees the recording of the customer service phone lines) because he claims not to know anything about planting surreptitious bugs.
I have no idea whether Mueller actually is being candid and truthful, or whether -- contrary to his testimony before the Senate -- he is intimately familiar with the technologies used by the FBI in the Scarfo case. But in any case, the CERT paper isn't the "gotcha" that this week's Whopper portays it to be. (And that's too bad, because I love a good "gotcha.")

--J. Gull

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