From: jim bell <jimbell@pacifier.com>
Date: Thu, 15 Aug 1996 03:46:11 +0800
To: Matt Blaze <mab@research.att.com>
Subject: Re: key escrow idea from David Satelin of MIT Lincoln Labs
Message-ID: <199608141555.IAA00344@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 01:48 AM 8/14/96 -0400, Matt Blaze wrote:

>>Remember, since the phoneco has had no competition, they've never been at 
>>risk from being shunned by customers who object to this secret cooperation.  
>>A more "realistic" position, I think, would be to conclude that if there was 
>>true competition, customers would be able to negotiate varying levels of 
>>non-cooperation in order to win customers.  I suspect that post-Ruby 
>>Ridge/post-Waco, there would be a substantial fraction of the public who 
>>would conclude that it cannot trust its own government.
>>
>
>Well, I don't know what went on before 1968, but these days phone companies
>don't keep wiretap orders secret because they are being nice to the police,
>they keep them secret because the court order for the weretap also orders
>them to.  Perhaps you aren't aware of this, but when a third party  is
>ordered to turn over records or access to something, the order often
>includes a provision that prohibits them from revealing the order to the
>subject.  This is not unique to phone records; orders for bank records
>frequently have secrecy provisions as well.

Well, that's just the problem.  These are clear violations of the 1st 
amendment.  The law may authorize a search, but the Constitution is supposed 
to limits them to "reasonable" ones.  And it says nothing about _secret_ 
ones, either.   The effectiveness of the search itself can't possibly be 
compromised by releasing the fact of the search AFTER it occurs, which means 
that the inclusion of such a secrecy order can't even conceivably be 
supported under the US Constitution.

 Think of this as a two-pan balance:  On the one side is the 1st amendment, 
a very important issue.  One the other side is...nothing.  Or, perhaps more 
accurately, no _constitutional_ issues.  Remember, the Constitution does not 
guarantee the effectiveness of the  entire investigative process; it merely 
addresses one portion of it, the search. (and even there, it doesn't 
guarantee a successful search!)   If the government claims that the process 
is crippled by releasing the fact of the search, then I'm afraid that this 
is not an adequate reason to violate free-speech rights.  (When the famous 
Miranda warning decision was made by the Supreme Court, cops said that it 
would cripple their investigations.)

You may say, of course, "that's not how they currently interpet it," but my 
response is simple:  Any talk of tolerating any sort of key-escrow (GAK) 
system must presume that the people running it are no more honest than they 
are today.  If the cops (and the government in general) so generously 
misinterprets the government's "rights" with regard to wiretapping, there is 
simply no reason to believe that any restrictions they claim to be willing 
to respect now will actually be followed once such a plan is approved.  
Don't try to get out of this:  You can't ignore past abuses.  And if they 
were willing to do illegal taps before 1968, this tells you how inclined 
they are to obey the law.

We've been handed an opportunity:  The government wants to change its 
wiretap powers, and unlike previous times the public is actually aware of 
what's happening and can object.  I think we must take this opportunity to 
entirely re-think the search-warrant/wiretap process.  Rather than blindly 
accept the opinions of crooked judges who got where they are by 
demonstrating their willingness to "get along by going along,"  we should 
strip away all the decades of scheming, and delete the entire process.

My opinion is that wiretaps are, inherently, unreasonable searches within 
the meaning of the Bill of Rights. Interestingly, support for this 
interpretation was shown when the media stated that Japan's Constitution 
prohibited wiretapping.  This was portrayed as being somewhat of an oddity.  
But in reality, that Constitution was forced on Japan after WWII, by the US. 
 Curiouser and curiouser, that happened during a time frame (pre 1968) in 
which wiretapping was illegal in the US, and probably believed to be 
unconstitutional as well.  Since the US Constitution hasn't changed since 
then, at least with respect to searches, the only realistic conclusion is 
that the thing that's changed is the interpretation of the US Constitution, 
and not for any sound reasons either.  (That Japanese Constitution, 
apparently not subject to such convenient re-interpretation, stands as it 
was when adopted, at least on this one issue.)

In fact, the timing for this change is suspicious:  1968 was certainly a 
rather tumultuous year, what with anti-Vietnam war protests, assassinations 
and such.  Not only in the US, but even more so in France, with the student 
riots.   The motivation to adopt an unconstitutional wiretapping law must 
have been substantial.  And given the fact that public polls on the concept 
of wiretaps repeatedly show it to be opposed by a majority of the 
population, I think the burden of proof is on the Denning-types to show that 
they're appropriate.




Jim Bell
jimbell@pacifier.com