From: Bruce Marshall <brucem@wichita.fn.net>
Date: Tue, 23 Apr 1996 02:10:12 +0800
To: cypherpunks@toad.com
Subject: Re: Wiretapping v warrants
In-Reply-To: <m0uAhuj-00090KC@pacifier.com>
Message-ID: <Pine.BSI.3.91.960422082951.14906A-100000@wichita.fn.net>
MIME-Version: 1.0
Content-Type: text/plain


On Sat, 20 Apr 1996, jim bell wrote:

> At 10:42 AM 4/20/96 -0500, Bruce Marshall wrote:
> >On Fri, 19 Apr 1996, jim bell wrote:
> >
> >> Here's a question, however:  What, exactly, stands between the way it is 
> >> supposedly done, today, and wiretapping with none of these "protections."
> >
> >    First and foremost Congress,
> 
> But were these "protections" the product of a law passed by Congress?

    As I do not qualify as a legal historian or expert I don't have any 
definitive answer for you on this point.  My guess would be that it lies 
somewhere in the bowels of the legal system.  I recall hearing about some 
early cases involving operators listening in on telephone calls (which I 
believe they are still able to do as long as it is random and for 
purposes of "service checks") and how this was declared a violation of 
privacy to the calling parties.

> > then the Judicial system 
> 
> I'm feeling much better....NOT!

    Obviously not a flawless and perfect branch of government, but what is?

> >and finally the people themselves.
> 
> It's called "Right to Keep and Bear Arms."

    More likely, the "Right to Vote Out the Incumbents."

> >    Since I'm not exactly sure whether the targets of a wiretap are ever 
> >informed that their conversations were monitored if they aren't later 
> >prosecuted using the info gained through the wiretap, I couldn't really 
> >comment on why if that is the case. 
> 
> The reason you don't know is simply that there is no _Constitutional_ 
> reason.  There is merely a practical one:  The act of wiretapping does not 
> automatically inform those tapped, in the same way that service of a search 
> warrant does, so the government CONVEEEENIENTLY forgets to tell them.  Most 
> government suck-ups don't even want to address this issue; they have no 
> explanation.  Unlike them, you acknowledged that you weren't away of the reason why.

    I also think the majority of us can look at that and say "what a bad 
thing."  But the real question is what we want to do about it.

> I seem to recall a news item from Washington state within the last couple of 
> years in which a conviction was thrown out because evidence was obtained  
> with thermal-IR imagers.  You know, look for the hot house and it's being 
> used to grow pot.  Problem is, that kind of viewing is not normally publicly 
> apparent, so a citizen has a reasonable belief that it can't be used against 
> him.  In another case, in Oregon, the use of night-vision goggles to observe 
> people (at least in collecting evidence) was thrown out, for the same 
> reason:  Even if, arguably, people were out "in public," they had a 
> reasonable expectation that they would not be observed if they were careful 
> to remain in the dark.

    Throw out the IR gogs then and look at the rest of the picture.  You 
still have the binoculars, the dish microphones and plain old eyes.  
Dosn't this pose a more reasonable comparison to your original topic of 
wiretaps?

   I have a feeling though that IR vision will become more accepted by the 
courts as a valid means of surveilance as its use increases.

> One more thing:  Until about 1968, the private use of tiny recording 
> microphones, in public, was essentially unlimited.  About that year, in many 
> states, it was restricted. (In some states it's illegal to record 
> conversations by surreptitious means, EVEN IF you're a party to that 
> conversation.  How bizarre!)

    And unconveinent for those of us who would like to be able to record 
our conversations without the explicit permission of the other party.

> My theory is that politicians recognized, 
> correctly, that they would be the ones most subject to such recording, and 
> since they engaged in incriminating (bribery) conversations fairly 
> regularly, they didn't want lobbyists to be able to collect a series of 
> recorded conversations that could later be used against the politician if 
> they later fell out of favor.

    While that may have been some of their original intentions for 
passing such a bill, do you think people who are already involved in 
illegal activities would stop and think "Wait a minute, I can't ILLEGALLY 
record this bribe,"?  Such blackmails surely continue.

> The reason I consider "the system" to be so crooked is that it tries to get 
> away with things like this whenever it can.

    Well, think about the situation.  The number of people who aren't
prosecuted after a wiretap is likely a small fraction of the whole number of
wiretaps (then again, how do we know?).  The number that find out they 
were under observation but not prosecuted is even more likely nil.  So, 
where are your chances to challenge this in court?  Where are the test cases?
Admitedly, Congress shouldn't have to wait for a case to take action to 
change this practice, but I doubt they are going to make a fuss about it 
before anyone else does.

Bruce Marshall