From: Michael Froomkin <froomkin@law.miami.edu>
Date: Fri, 29 Mar 1996 22:15:24 +0800
To: Lucky Green <shamrock@netcom.com>
Subject: Re: So, what crypto legislation (if any) is necessary?
In-Reply-To: <v02120d45ad7e0e677c40@[192.0.2.1]>
Message-ID: <Pine.SUN.3.91.960327102120.17424F-100000@viper.law.miami.edu>
MIME-Version: 1.0
Content-Type: text/plain


On Tue, 26 Mar 1996, Lucky Green wrote:

> At 2:08 3/26/96, Shabbir J. Safdar wrote:
> 
> 
> It is a widespread myth that wiretaps require warrants. Court ordered

Unfair.

> warrants are not required for a wiretap. They have not been required since
> the Digital Telephony Bill passed. That the net, the media, and even
> attorneys are so blissfully unaware of this, even years after the provision
> doing away with requiring warrants became law, is one of the finest
> examples of cognitive dissonance you are ever likely to find. It is too
> disturbing to believe it, so the mind ignores the facts.

Unfair.

> 
> Excerpt from the Digital Telephony Bill
> 
> quote
> SEC. 103. ASSISTANCE CAPABILITY REQUIREMENTS.
> (a) Capability Requirements: [...] a telecommunications carrier shall
> ensure that its equipment, facilities, or services, that provide a customer
> or subscriber with the ability to originate, terminate, or direct
> communications are capable of--
> 
> (1) expeditiously isolating and enabling the government, pursuant to a
> court order or other form of authorization, to intercept, [...] all wire
> and electronic communications [...].
> end quote
> 
> *Other forms of authorization*, other than a court ordered warrant that is,
> are explicitly allowed. Nowhere in the bill, or anywhere else AFIK, is
> stated what form these other forms of authorization can take. No limits
> whatsoever as to what the government can do.
> 
> "My supervisor approved it" may well suffice.
> 
> 
Untrue.

I see no reason whatsoever to believe that an un-warranted wiretap would 
be legal in any but two cases.  (1) Emergency threatening life (e.g. 
hostage-taking) pending judicial authorizaiton -- very rare.
(2) The president claims residual authority to wiretap on national 
security grounds without a court order.  Since the FISA court provides 
the authority, this (one is told) is not used.

There is no question that the Justice dept is very cagey about not ever 
admitting that one has an exhausive list of means by which they claim the 
authority to tap.  If some other tap is in use, however, it is an awfully 
well-kept secret, which argues that it is used for inltellignece and not 
law enforcement.  LEOs can't keep that kind of secret any more.


A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.