Big Brother Really IS Watching – And It’s Creepier Than You Think

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Summary: Is your law firm looking over your shoulder without you even knowing it? Find out in this article.

Although most law firms monitor their employees work by tracking what websites they use and blocking certain URLs, some more proactive firms have turned to keylogging – or tracking each key that an employee presses. Keylogging even notes combinations of keys (like ctrl + alt + del). This allows them to see what employees are writing in all online interactions, and even to glean secret passwords to bank accounts or personal email.

  

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Keyloggers started as malware – viruses installed into computers for hackers and criminals to get bank and credit card information. They hide in the background while all other systems run normally; keeping track of everything a user does without detection. They can also be installed as hardware: something small plugged into the back of a computer.

Keyloggers actually have a long history of intercepting personal information. In the 1970’s, the Soviet Union used perhaps the world’s first keylogging software to monitor secret and classified correspondences from US spies. They used a version of the hardware iteration of today’s keylogging software – a metal bar full of tiny circuits that they implanted into the typewriter. It tracked all letters pressed, and actually recorded and transmitted the information to Soviet spies in real time, as each word was typed.

But that keylogging tidbit isn’t just a fun little anecdote about Cold War era spies. Today, employers are using an even more insidious version of this technology to monitor literally every move their employees make online. And developers are targeting customers with this usage, selling keyloggers as a great way to keep track of children’s behavior online, or to find out if a spouse is cheating, or for “company security.”

This sounds extremely illegal. What about rights to privacy? Although there is no federal framework that specifically addresses keylogging, The Electronic Communications Privacy Act, which includes the Federal Wiretap Act and the Stored Communication Act, could cover the issue. In courts, however, the act has been interpreted fairly narrowly, allowing employers to keylog with impunity.

The FWA addresses “intentionally intercept[ing]” an “electronic communication.” In Rene v. G.F. Fishers, Inc, Rene argued that her employers violated the FWA by “intercepting” her keystrokes. Rene’s employers allowed her to access personal email and her personal checking account from her office computer without informing her that the device was being monitored by a keylogger. They then accessed the passwords, and passed them around the office.

However, the court found that their keylogging did not qualify as “interception” under the FWA. In fact, because the information was only passed around the office, it was not under the jurisdiction of a federal law, as it didn’t involve interstate commerce.

Another relevant case addressing keylogging was United States v. Ropp. Again, Ropp’s employers used keylogging technology to access personal information on Ropp’s work computer. And, again, the court held that keeping track of keyboard keystrokes by a key logger was not a violation of the FWA. Because the keystrokes were not “electronic communications” under the authority of the act, or involved with “interstate commerce,” the application of the Wiretap Act was again deemed irrelevant.

There have been some cases challenging this narrow interpretation of the Federal Wiretap Act. In Potter v. Havlicek, a spouse spied on his partner using keylogging software. In this case, the court held that, although the gleaning of information didn’t travel in interstate commerce, it still affected interstate commerce. This meant that, potentially, keylogging could violate the FWA.

Brahmana v. Lembo was another case in which the courts interpreted the impact of the FWA more broadly. Again, the court cited the fact that key monitoring might actually relate to interstate commerce in a broader sense. In Langston v. Langston, a Texas court held that the laws relating to the legality of keyloggers were at least unclear, referencing Brahmana and Havlicek as examples of courts finding keylogging to violate the FWA.

As of now, however, the consensus seems to be that monitoring and logging keystrokes is perfectly legal. Employers are allowed to track every move their employees make on their office computers. There is really only one situation in which courts seem to be in agreement that keylogging violates an employee’s rights.

Although obtaining passwords isn’t, on its own, a violation of federal law, using those passwords is. If an employer allows others access to passwords for private accounts, or uses these passwords to browse the history on a private account, then that’s illegal. But that’s about it. Otherwise, tracking every keystroke an employee makes is totally OK, under the law.

So, how do you know if your firm is using a keylogger? Basically, you can’t. Keyloggers are designed to run invisibly, and employers are legally allowed to install the hardware or software on an employee’s computer without “trespassing.”

I tried reaching out to IT people at various law firms, but every one of them was under an Non-Disclosure Agreement that meant that they couldn’t tell me anything about whether the firms they worked for was using keyloggers or not. Just another creepy layer to add to the whole story.

Fortunately, most firms only block certain websites and monitor what websites employees view. But – beware. Know what you may be up against. Ask your supervisors if they’re using keylogging technology, but also know that they are not required to disclose it. The best choice is the most irritating – try not to screw around on a work computer. Use your smartphone instead.