From: jimbell@pacifier.com (jim bell)
Date: Sun, 3 Dec 95 23:11:00 PST
To: cypherpunks@toad.com
Subject: Re: "Got a subpoena?"
Message-ID: <m0tMUkO-000950C@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


>On Sat, 2 Dec 1995, jim bell wrote:
>
>> >On Thu, 30 Nov 1995, sameer wrote:
>> >
>> >> > 
>> >> > What about a court order to (a) start comprehensive logging, and (b) not
>> >> > tell anyone under penalty of ______ .
>> >
>> >I am unaware of any authority for such an order.
>> >> 
>> >> 	Aren't court orders part of the public record? I don't quite
>> >
>> >Yes, but court orders can be sealed pending further order of the court.
>> 
>> Okay, maybe with your qualifications you can answer this.  It has always
>> mystified me why "the authorities" think they can engage in wiretapping
>> without informing the person wiretapped that this has occurred, despite the
>> fact that there was apparently never any precedent for this practice before
>> the "wiretap era."
>
>Because Congress passed the Electronic Communications Privacy Act which 
>is codified, as amended, at 18 U.S.C. Section 2510 et seq.  Section 
>2511(2)(a)(ii) states in part:  "Notwithstanding any other law, providers 
>of wire or electronic communication service ... are authorized 

"are authorized"?  You mean, NOT REQUIRED, but merely "authorized"?  

In any case, this doesn't explain why this is CONSTITUTIONAL.   I hope you understand the difference.

>to provide 
>information, facilities, or technical assistance to persons authorized by 
>law to intercept wire, oral, or electronic communications ... if such 
>provider ... has been provided with [a court order or a certification by 
>an appropriate official that a court order isn't required ...].

I realize that a phone company might not normally be expected to refuse to cooperate, but the way the thing above is written, they are merely "authorized" to do something, they are not required to do it.

 
>> In addition, I would like to be able to figure out a method to allow the
>> de-facto disclosure of such activities, and to in fact force the phone
>> company to do so, if they are asked to tap my or anyone else's phone.  It
>> occurred to me that even if there was a prohibition on explicitly revealing
>> that such a tap exists, it should be possible to require the telephone
>> company to certify that no tap exists, and to require that this
>> certification will be followed by an explicit and immediate de-certification
>> message the moment the phone company is unable to maintain such
>> certification.  The receipt of such a letter/fax/email will indicate that a
>> tap has been placed, despite the fact that it will not say so.
>
>Sorry.  
>
>In subsection B of the the statute I quoted above, it states in 
>part:  "No provider of wire or electronic communication service ... shall 
>disclose the existence of any interception ... with respect to which the 
>person has been furnished a court order or certification ... except as 
>may be otherwise required by legal process and then only after prior 
>notification to the Attorney General or ....  Any such disclosure shall 
>render such person liable for the civil damages provided for in section 
>2520. 

Sorry, I don't think that's a satisfactory answer.  First,  it would presumably be possible to disclose the WIRETAP ORDER without explicitly disclosing the existence of the "interception" as stated above.  Admittedly it would amount to the same thing from the standpoint of the person wiretapped, but as far as I can see it would not LEGALLY be the same thing.  The letter from the phone company will state:

"We have received a wiretap order from the court listed below.  We have not YET acted on that order.  We are not disclosing the existence of any interception, and we cannot legally do that.  You are forewarned!"

Or, more coyly:

"Normally, we can reassure customers that their telephone lines are not being wiretapped by the police.  However, during the period of January 15, 1996 through January 30, 1996 we can no longer give you that assurance.  Please take care during this period."

Note that I am assuming the willingness of the phoneco to be UNCOOPERATIVE, at least according to "the spirit of the rules."  They could still cooperate according to the LETTER of the law.


> No cause of action shall lie against in any court against any 
>provider ... for providing information ... in accordance with the terms 
>of a court order or certification under this chapter." 
>
>Thus providing evidence of that one of the uses of lawyers is to [attempt 
>to close loopholes.

Which is an excellent reason for implementing my idea, "Assassination Politics."