From: smb@research.att.com
Date: Wed, 29 Sep 93 00:51:38 PDT
To: Mike Godwin <mnemonic@eff.org>
Subject: Re: Disturbing statistics on wiretaps
Message-ID: <9309290751.AA19846@toad.com>
MIME-Version: 1.0
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	 smb@research.att.com writes

	 > 	 The same is true of e-mail over the Internet--there is no
	 > 	 statutory exclusionary rule that would prvent its
	 > 	 admissibility in court. It is at least theoretically possible,
	 > 	 however, to exclude illegally seized communications of these
	 > 	 sorts using a "pure 4th Amendment" (nonstatutory) exclusionary
	 > 	 rule.
	 > 
	 > 	 Don't hold your breath, though.
	 > 
	 > Do you really think that?  One could argue, fairly strongly, that th
	e
	 > rules set forth in the ECPA have created an expectation of privacy,
	 > and that a violation of that expectation would be exactly the violat
	ion
	 > of the 4th Amendment that the Supreme Court addressed in the 1967
	 > decision that led to the original wiretap provisions in the Omnibus
	 > Crime Control and Safe Streets Act.
	  
	 What's your point? One can argue all sorts of things. Are you
	 saying you have reason to believe an argument of this sort is
	 likely to be a winner?

	 Me, I just work from what I know about 4th Amendment caselaw.


I realize that you know more about the relevant case law than I do.  It
would be pretty sad if you didn't.  But I'm not completely ignorant of
either this subject in particular, or constitutional law in gneral, and
I like to learn more.  I'm asking to be educated, and I don't like to
rely on assertions by authority.  I advanced what I thought was a
fairly strong argument against your point.  Further, the wording of the
statute seems pretty clear to me.  18 USC 2515:

		Prohibition of use as evidence of intercepted wire,
		       oral, or electronic communications

	     Whenever any wire, oral, or electronic communications has
	been intercepted, no part of the contents of such communication
	and no evidence derived therefrom may be received in evidence in
	any trial, hearing, or other proceeding in or before any court,
	grand jury, department, officer, agency, regulatory body, legis-
	lative committee, or other authority of the United States, a
	State, or a political subdivision thereof if the disclosure of
	that information would be in violation of this chapter.

As I read it, if the government doesn't follow the wiretap rules,
the evidence thereby obtained can't be used.  What have I missed?


		--Steve Bellovin