From: Greg Broiles <gbroiles@netbox.com>
Date: Tue, 8 Oct 1996 14:09:21 +0800
To: "Vladimir Z. Nuri" <vznuri@netcom.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <3.0b28.32.19961007201030.0071b3b0@ricochet.net>
MIME-Version: 1.0
Content-Type: text/plain


>no, all I am asking for is lawyers who are familiar with wiretap law
>to make a quick case against it based on a commonly-known precedent
>within their field. if you don't want to answer, don't post.

This sounds like a very reasonable proposal. But please don't take a lack
of response to your speculation as an endorsement of your idea, or a
suggestion that it's got even the teeniest shred of merit. I understood you
to be suggesting that because nobody's shown to your satisfaction that it's
meritless, you've somehow stumbled across something important. 

>I will write on anything I damn well please and research it poorly or
>thoroughly as I like, and whisper questions to any lawyers out there who care
>to talk about the subject to an interested layman.

This response illustrates precisely why Uni was reasonable in declining to
give you references. If you're not willing to look up your own crackpot
ideas, you certainly shouldn't imagine that someone else is. (But here's a
hint - if you read the statutes, you might discover that some notification
to the target of a wiretap is required, although not prior to installation.)

>you have a lot of good advice, but I ask none of the things you are
>attributing to me. I simply would like to carry on a discussion with
>a civilized lawyer who specializes in the subject, rather than have
>a people tell me why I cannot even do this, and must become a law
>specialized before I can even use the word "wiretap" with any 
>meaningfulness.

You can no more meaningfully discuss law without learning about it than you
can discuss cryptography or biology or philosophy or any other area of
human scholarship and knowledge.

I think it would be a positive change were the law reworked so that it was
more accessible to lay people, and so that the practice of law were not
such a specialized field. But please note that I talk about that as a
*change*, that is to say, different from how it is today.

You can, if you want, try to work on similar questions in parallel with
established institutions - probably all fields have a group of rogue
scholars or dissidents who believe nonstandard things, adopt nonstandard
methodologies, etc. Sometimes they turn out to be right, sometimes not.
This dynamic exists with law - e.g., what I'd call "Militia Law" (I think
they call it "Common Law" but I'm not sure). Jim Bell seems to be working
on a similar track - starting with original documents and deriving his own
interpretations, rules for statutory construction, and so forth. Perhaps
history will smile on Jim or the militia/common-law folks. Perhaps not.

But crossover is not possible (as should be clear from the past few days'
discussions). Arguments from one school of thought are not useful in the
other because the premises are different, and sometimes contradictory. I
think that it's interesting and good that people are working on their own
theories of law apart from the traditional institutional ones. But I think
it's sad when they try to use their theories (which I think are best
understood as the laws of a foreign, albeit imaginary, nation) in
contemporary state & federal courts. See 
<http://www-leland.stanford.edu/~jgadams/taxcases.html> for a big list of
cases where people with their own versions of the law got spanked in
traditional courtrooms. I think it's a shame when people excited about
their own legal theories get innocent third parties roped into these
peculiar scams. (Then again, there's the argument that this is evolution in
action.)

So that's a long way of saying "plonk." I don't think it's productive for
me to try to keep track of multiple versions of the constitution; and I've
settled on the one that's used today in court as the one I'm going to pay
attention to. I don't get the impression that you care about how things
actually work; you seem much more interested in making some baroque
rhetorical point about how all cypherpunks are evil. (In particular, I'm
suspicious that you think wiretaps are unconstitutional yet it's evil to
try to avoid them with crypto. I think you want someone to write you
several pages' worth of memorandum about how wiretaps are legal, so that
you can cleverly turn around and argue that defeating something which turns
out to be so clearly legal must, in fact, be wrong. And I think you take
that position simply to be contrary.)

If you are truly interested in the legal questions around notice to
subjects and Title III wiretaps, see LaFave & Israel, "Criminal Procedure"
(West). It's got quite a few pages of discussion about Title III. I'm not
going to summarize it here because my copy is old enough that I don't know
if the research behind it is still current, and I'm not in the mood to do
free research for people who will ignore my results. But I'm willing to bet
that you'll never look it up anyway. 

>the chief point of my post was to question why the EFF etc. are not
>at all interested in challenging the wiretap "status quo" in spite
>of what many people here believe/advocate-- that wiretapping was
>never legitimate in the first place. this is curious because EFF
>etc. *are* willing to back up the cryptography cases out there,
>ala Bernstein etc.

The EFF's failure to work on your little project seems like it might be
caused by:

1.	a conclusion that it's not a viable argument, and hence a waste of
time/effort
2.	a conclusion that the constitutionality of wiretaps isn't specialized
enough that they should concentrate on it, they can leave that argument to
well-funded defense attorneys for Mafia/drug clients, who deal with wiretap
evidence frequently
3.	lack of a good case to raise it with

My guess is it's mostly (1), though (2) and (3) might be enough to make it
uninteresting even if (1) wasn't true. But I don't know poo about how or
why EFF decides which issues to work on. Are you even a member? 

--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |