From: Mike Godwin <mnemonic@eff.org>
Date: Mon, 7 Feb 94 14:31:29 PST
To: cyberia-l@birds.wm.edu
Subject: Re: reno_key_escrow.statement (fwd)
In-Reply-To: <9402071501.AA11306@mail.wm.edu>
Message-ID: <199402072231.RAA07108@eff.org>
MIME-Version: 1.0
Content-Type: text/plain


 
Trotter writes:

> Thanks to Mike Godwin for forwarding the announcement about the
> Clipper chip stuff.  I am not a Constitutional law person or
> criminal preceedure person, but if I understand this proposal
> correctly, it does not require a member of the judiciary to be
> involved.

Not at the key-escrow phase, no. But you have to have a valid search
warrant or authorization order in hand before you can go to the escrow
agencies and request the partial keys.

Here's the relevant language:

> > ATTORNEY GENERAL MAKES KEY ESCROW ENCRYPTION ANNOUNCEMENTS
> >
> > When an authorized government agency encounters suspected key-
> > escrow encryption, a written request will have to be submitted to
> > the two escrow agents. The request will, among other things, have
> > to identify the responsible agency and the individuals involved;
> > certify that the agency is involved in a lawfully authorized
                                           ^^^^^^^^^^^^^^^^^^^^^
> > wiretap; specify the wiretap's source of authorization and its
                                   ^^^^^^^^^^^^^^^^^^^^^^^
> > duration; and specify the serial number of the key-escrow
> > encryption chip being used. In every case, an attorney involved in
> > the investigation will have to provide the escrow agents assurance
> > that a validly authorized wiretap is being conducted.

The reason that Reno doesn't just say "a court-ordered wiretap" is
that there are some emergency circumstances under which wiretap
authorization can be gotten in advance of approval by a neutral
magistrate. Both the Wiretap Act and the Foreign Intelligence Surveillance
Act make provisions for such emergencies. 

Eventually, such emergency wiretaps do have to be reviewed by a
magistrate, however. In the Wiretap Act, and, I believe, in FISA, 
the time limit is 48 hours.


--Mike