From: Black Unicorn <unicorn@schloss.li>
Date: Tue, 9 Apr 1996 15:59:29 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: So, what crypto legislation (if any) is necessary?
In-Reply-To: <m0u5Q3q-0008xlC@pacifier.com>
Message-ID: <Pine.SUN.3.91.960406132040.2832E-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 5 Apr 1996, jim bell wrote:

> At 03:49 AM 4/5/96 -0500, Black Unicorn wrote:
> >On Thu, 4 Apr 1996, jim bell wrote:
> 
> >> I really don't think you're giving me enough credit.  I am fully aware that 
> >> in the past, the organizations on which wire-tap-type subpoenas were served 
> >> (primarily AT+T, "The phone company") were very cooperative with the police 
> >> and probably "never" challenged the subpoena. There is the law, and there 
> is 
> >> the usual reaction to that law, and I expect that much of Unicorn's 
> position 
> >> is based on a (false) assumption that this reaction will necessarily 
> >> continue unchanged.
> >
> >Now, if this is your postion, let's see some support.
> 
> You do the research.  Until 1968, Federal wiretaps were illegal, by the 
> Federal communications Act of 1934.

I was asking for you to support your position that my 'assumption' that 
"this reaction" will continue (i.e. that telecos and ISP's would 
cooperate with investigations), was false.  What the history of wiretaps 
has to do with this, except that it supports my position the government 
has enough intimidation power to bully their way, is not clear.

> 
> >From Encyclopedia Brittanica, 1970, vol 23 page 592:

Uh huh.  Ok.

> It is reasonable to assume that most wiretaps, when they were done, were 
> assisted by the local phone company (usually AT+T).  In other words, AT+T 
> assisted the government in illegal actions.

Actually, this is not reasonable to assume, mostly because it's false.  
While some very small number of illegal wiretaps might have involved phone 
company complicity, the vast majority of illegal wiretaps were of the 
alligator clip vareity and require little if any phone company 
assistance.  This is why Digital Telephony was such a big deal.

   What happened in 1968 
> was that Congress, recognizing this situation, decided to "compromise":  
> They declared those wiretaps legal, if a warrant was obtained, and and a sop 
> to the cops they allowed that evidence into court.

This is indeed a creative intrepretation.

  But them's the details.  
> The fundamental point is that if AT+T would engage in illegal activity to 
> benefit the cops or Feds, they would certainly go less far to give the 
> government what it wants, whether or not that was illegal.  Clearly this was 
> (and is) a non-arm's length relationship.

I don't follow.  Phone company does outrageous things to help feds, so 
it's safe to assume that they would do less?

> >very credible threat of financial and custodial sanctions.  Obstruction, 
> >or conspiracy is a crime, and in the case of the FBI, a federal crime of 
> >some magnitude.
> 
> As usual, you misrepresent the situation.  You're setting up a straw man.  
> "Appeals" are not "obstruction."

And appeals come after equipment has been seized.
 
> >While some ISP's may indeed feel they are able to resist the whims and 
> >enforcement powers of the United States, they are likely to be offshore, 
> >small, and viewing themselves as out of the reach of U.S. jurisdiction.
> 
> You continue to build that straw man.  
> 
> And I notice that you said "whims"?  What did you mean by this?  Are you 
> suggesting that there is something wrong or illegal with "resisting the 
> whims" of the government if that government has no legal basis for 
> compelling cooperation with those "whims"?  I think it's interesting that 
> with each paragraph you set little traps for yourself, and fall into them so 
> embarrassingly.  

I have never offered the view that these things are not distasteful.  You 
see inconsistancies in my view because you have assigned that position to 
me.  The reality is that all court rulings require a bit of whim.  We 
differ in that I don't suggest killing judges is the way to deal with it.

[...]

> >It is worth bearing in mind that subpoenas are not the only tool that 
> >authorities can use to affect compliance.  In many cases authorities 
> >simply seize the equipment and hold it for the statuatory period before 
> >which  they are required to file charges in.  The Ripco BBS in Chicago, 
> >victim of the Sun Devil raids, is a prime example.  In that case the 
> >equipment was seized (via sealed warrant which later proved to authorize 
> >seizure of "computer or other electronic equipment of any nature."  and in 
> >actuality resulted in the seizure of everything from disks to printers 
> >to telephones), and held for five years before finally being returned.  
> >Clearly it was obsolete by this time.  No charges have been filed.
> 
> What I repeatedly find amazing about Unicorn's commentary is that he lists 
> actions and behaviors of government that most of the rest of us find 
> disgusting or egregious, and then he seems to take the position that it is 
> impossible to prevail in court against those actions.  

Change the sentence above to indicate that I take the position that is it 
"difficult in the extreme to prevail in court against those actions." and 
you have hit my position on the head exactly.

Again, you find this amazing because you have attributed to me an 
approval of this status quo which I do not have.

> Even if that limited opinion were true, to the extent it's true that merely 
> goes to show why we can't expect justice from courts, and why we're going to 
> have to set up a system to ensure that these egregious actions get punished.

I find it interesting that Mr. Bell, who demands formalism as a rule when 
reading the bill of rights, is so quick to condemn officials to death 
without their right to due process.

> >In practice many ISP's or phone co's will not have the opportunity to 
> >defend the matter in court without their services and equipment being 
> >forcibly seized preemptively.
> 
> Oh, really?  Do you realize what you've just admitted?  You're your own 
> worst enemy.  Let me quote you something you said below:
> 
> >There are ways to resist compelled discovery.  These are not they.
> 
> Sounds like a big contradiction, right?  You can't even keep your story 
> straight!  Your loyalty to the truth is nil.  Yet another trap you set for yourself.  

How is this a contradiction?

Service providers can expect to have their equipment preemptively seized 
if there is reason to believe the data might be destroyed (this is the 
sun devil example) and as such if you want to resist compelled discovery 
as an ISP, an open policy that you will assist the account holder in 
thawarting the authorities is not the way to do it.

> >What you have described is a crime.  Your "clever" lawsuit isn't going to 
> >fool any judge, or anyone else.
> 
> There is a big difference between "not fooling the judge" and becoming a 
> crime.  As I pointed out before, these are exactly the kinds of issues that 
> have "never" been enthusiastically challenged by an ISP or telco.  Your 
> assumption that such challenges will never happen, or will fail is touching.

Ripco BBS and Steve Jackson Games both contested their seizures with 
passion.  It didn't get them their equipment back any sooner.
 
> >> My point in the first paragraph that I am quoted in above is 
> >> that many of the challenges that have never been made against wiretap 
> >> subpoenas, due to a closer-than-arms-length relationship between the 
> phoneco 
> >> and the government, _will_ be challenged.
> >
> >This argument relies heavily on the absence of other persuasion to comply 
> >with wiretaps, which, as I have demonstrated, exist in abundance.  Thus the 
> >thing falls in upon itself.
> 
> The error you just made is to confuse the issue of adjudication and 
> enforcement.  All you just said was that, once the final decision is made, 
> it can be enforced.  I don't think it's necessary for me to challenge that 
> claim, for the purposes of my point.  My point is that challenges to 
> subpoenas can and do occur, WHEN THE PERSON OR CORPORATION NAMED _wants_ to 
> do them, and up until now that organization regularly failed to do so.

The result will simply be resort to seizure warrants to get the 
equipment, followed by contempt charges for refusal of the account holder 
or ISP to reveal the key.

You can fight this, sure, but it's only going to do you any good if you 
win.  In any event the ISP will be out the equipment for the duration.  
Prosecutors are not going to take these developments sitting down.

> >You're claiming that a court is going to distinguish the case where a 
> >small ISP/telco refuses to comply with a compelled discovery order from a 
> >case where a large telco typically complies with a discovery on the basis 
> >that the large company complies only under compulsion or in self interest?
> >
> >This amounts to "A obeys the law because he wants to.  B doesn't want to 
> >obey the law, therefore B need not."
> 
> Further "straw-man" behavior. You just misrepresented the issue.  I'll 
> re-write it:
> 
> "A obeys not only the law without question, but also agrees with all 
> requests even if they are beyond the legal scope of the subpoena, and 
> generously helps the cops, challenging nothing.  B challenges everything, 
> and uses 'every trick in the book' to eliminate or minimize his obligations 
> under the law"
> 
> There, that's better.
> 

And so how is B less required to comply with the law, including 
cooperating with lawfully issued search and seizure warrants executed by 
duly appointed law enforcement officials, appearing to testify at the 
request of the court and complying with court orders?

> >As I have tried to explain to Mr. Bell before, the days of legal 
> >formalism are over.  Substance over form prevails today. 
> 
> What, exactly, does this mean?  Are you saying, "The Constitution is dead"?  
> Are you implicitly acknowledging here that my points are, or at least, WERE 
> valid under a previous interpretation of the Constitution?  What, exactly, 
> happened to change this?  Who passed which law to change it?

Study your history.  Card catalogue under "Schools of American Legal 
Thought."

> 
> >The substance 
> >of this transaction is to inform the client that an investigation is 
> >ongoing.  This is a major no-no, whatever Mr. Bell thinks he knows.
> 
> "major no-no"?    It sure is interesting how Unicorn uses thes high-falutin 
> legal terms like "major no-no" to describe the intricacies of subpoena law.

I thought it might be easier for you to understand.  Clearly this was my 
error.

> >> (and, in fact, may be 
> >> required under my contract with him, should he be obligated to do a tap or 
> >> know one exists.)
> >
> >As I explained before, contracts are void to the extent they are 
> >illegal. 
> 
> Unicorn proves, once again, that a little knowledge is a dangerous thing.
> 
> But I don't think that FAILING to send a particular certification (that the 
> ISP isn't under subpoena) constitutes an "illegal" contract.  The 
> fulfillment of that term is not legally required, absent a contract, and 
> likewise it is not generally prohibited if it is part of a contract.  It 
> looks like the government has no basis to object to either sending that 
> certification or failing to.

Mr. Bell proves that no knowledge is a dangerous thing.

It was Mr. Bell's position that an ISP would provide warning to an account 
holder, and if it refused it would be subject to the consequences of 
breeching some agreement.  This was how he 'got around' the problem of 
the authorities compelling the ISP to cooperate in their investigation.  
To do so, he argued, would expose the ISP to contractual liability.

A clause in a contract which reads, and to be clear would have to read, 
"ISP shall send regular certifications until such time as law 
enforcement officials, civil litigants, or other parties unrelated to the 
account holder enquire as to or require disclosure of account holder's 
personal information or data."

Now, please tell me how this clause, and the warning therein, is passive 
resistance.

> In a government-centric philosophy enthusiastically promoted by Unicorn, 
> government is the only enforcer.  In the real, digital world of the future, 
> digital reputations will enforce behavior.  A practice by an ISP to tolerate 
> subpoenas without legal challenge will become well-known, and that ISP will 
> shrink to oblivion unless he changes his policies.

I merely acknowledge that government centric enforcement is the status 
quo.  Any approval thereof is your imposition.

> >Mr. Bell's response?  "Well, then we'll kill him and enforce 
> >the contract that way."
> 
> Given the repeated admissions you make that the government can and does 
> engage in outrageous behavior, I'd say that extra-legal enforcement is 
> clearly warranted.

And there we differ.

> >Incorrect.  They have been challenged time and time again in the context 
> >of compelled discovery.  Time and time again compelled discovery has been 
> >required, TRO's forbidding the destruction of documents and other 
> >evidence issued, search warrants and seizure effected in place of subpoena.
> 
> For a different class of people and corporations, yes.    Not ISP's, and as 
> far as I know, telephone companies have never pushed the envelope.  If you 
> have any specific contrary examples, show me.

I can't comment as to ISPs.  BBSs have been a frequent victim of compelled 
discovery and preemptive seizure.  Why precisely you think that court's 
will make a distinction must be an interesting chain of logic.

Compelled discovery is a wide judicial tool.  I don't know what the 
circumstances under which it would be ruled illegitimate would be.  I am 
almost positive that these circumstances would not include an 
uncooperative and or obstructive (legal or illegal) ISP.

> >The telco in past has not complied with such orders because of some grand 
> >government conspiracy, 
> 
> You statement is wildly in error.  AT+T clearly did phone taps for the 
> government prior to 1968 PRECISELY due to "some grant conspiracy":  It 
> certainly didn't do them because AT+T was _legally_obligated_ to.

Well I'm afraid you'll have to back this up with more than assumptions 
and the encyclopedia.

> >although I realized Mr. Bell finds such things 
> >immensely sexy.  It has complied because its officers faced criminal and 
> >financial sanctions for non-compliance.
> 
> Which is an interesting statement, given the fact that I pointed out that in 
> the period of 1930-1968, the phone company assisted with ILLEGAL wiretaps.  
> Are you suggesting that during that time frame, they actually violated the 
> law under threat of "criminal and financial sanctions for non-compliance"?  
> What kind of government threatens people with "criminal and financial 
> sanctions" for NOT assisting it with illegality?  
> 
> Yikes!  Somehow I think your morality is about as warped as it comes.  Yet 
> another trap you set for yourself, and you jumped right in.

The only trap I fell into was bothering to respond to you.

> 
> >
> >There are ways to resist compelled discovery.  These are not they.
> 
> What you haven't explained or demonstrated is how ISPs could become more 
> agressive in their defenses.  This failure is typical of you:  Your bag of 
> tricks is empty _unless_you_are_paid_.

You're pretty socialist for a libertarian

> Jim Bell
> 
> jimbell@pacifier.com


---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
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