John Marshall Law School
Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. 25 The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.26 The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) 27 that dramatically modifies current surveillance law, thus further complicating the untested waters of a new surveillance method with an undeveloped statutory scheme that would potentially regulate that method.28 In addition, it is uncertain whether Magic Lantern can legally operate under the authority of a search warrant, requiring a relatively low burden of proof, or whether it will have to obtain a wiretap, with a high burden of proof, in order to conduct surveillance.
The second concern is constitutional. If the FBI only obtained authorization to record a certain kind of information, and the keystroke logger recorded every keystroke entered by the target whether it regarded the information sought or not, then it is possible that the software could result in overly broad searches in violation of the Fourth Amendment.
By considering the only recorded case dealing with a technology similar to Magic Lantern, Section I of this comment will develop the dynamic legal environment Magic Lantern is entering, as well as outline a sister software to Magic Lantern, also created by the FBI, that was known as "Carnivore."31 Section II of this comment analyzes the constitutional questions Magic Lantern presents within the context of the Fourth Amendment. 32 It focuses the possible violations of search and seizure, invasion of privacy, and over-broad searches. 33 Section III explores the statutes that might apply to Magic Lantern and discusses the new niche that the software has carved, for it does not clearly fit into many of the laws that deal with electronic surveillance. 34 Specifically, Section III will examine such statutes as the Electronic Communications Privacy Act ("ECPA"), 35 the Foreign Intelligence Surveillance Act ("FISA"), 36 the USA PATRIOT Act,37 and others that might substantially bear on the use of Magic Lantern. Section IV briefly confronts the practical dilemmas that Magic Lantern faces, such as its coexistence with anti-virus software programs and its foreign government quagmire.38 Section V attempts to resolve the ambiguities surrounding Magic Lantern and suggests how Magic Lantern will be treated in the future.
The Magic Lantern Revealed: A Report of the FBI's New Key Logging Trojan and Analysis of its Possible Treatment in a Dynamic Legal Landscape
John Marshall Journal of Computer & Information Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3563