From: jim bell <jimbell@pacifier.com>
Date: Sat, 5 Oct 1996 13:07:03 +0800
To: "Vladimir Z. Nuri" <vznuri@netcom.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <199610050252.TAA02130@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 06:10 PM 10/4/96 -0700, Vladimir Z. Nuri wrote:
>>It didn't have to be this way.  The SC might simply have said that wiretap 
>>warrants must follow the same rules all other warrants followed, meaning 
>>that the target is informed of the tap when it is placed.  Sure, the police 
>>would howl, complaining that they'll never hear anything "useful" if the 
>>target is informed, but then again, the Constitution cannot guarantee that 
>>any particular search would achieve its intended results.
>
>but then again, if "we the people" didn't challenge a usurpation of
>our rights when it happened, something's wrong here.

I've read references to polls which repeatedly show that well over 60% of 
the public is opposed to wiretaps, period.

But no, I'm under no illusion that even a legal challenge would be respected.


> hence my
>opinion that wiretapping should be challenged in court.

Well, I agree it should be challenged, but if anything my point is that the 
reason it wasn't challenged was the fact that wiretap targets are never 
given the opportunity.  

(Note for the clueless out there: An after-the-fact challenge doesn't count. 
 Apparently, "non-incriminating" wiretaps are essentially never announced to 
the victim...er...target.  And judges are sufficiently biased, gutless, and 
brainless that they almost never throw out the _incriminating_ results of a 
wiretap warrant.  THis is for the same reason Judge Ito didn't throw out the 
evidence the four crooked detectives got in OJ's house, after jumping the 
fence without a warrant, claiming that they were afraid somebody was in 
danger inside.  As I'm fond of saying, "Fuhrman pretended to tell the truth, 
and Ito pretended to believe him.")


>>Are police entitled to use thumbscrews if simply asking a question won't get 
>>the "right" answer"?  I don't think so.  
>
>very poor analogy. a rhetorical loser imho characterisitic of 
>painting the issue in terms of extremism.  wiretapping doesn't involve 
>any physical pain to the surveilled. also it is barely analogous
>to "search and seizure" in that there is nothing physical being
>seized. (just playing the devil's advocate here)

No, not at all.  The point is that acknowledged illegal tactics (remember, 
wiretaps were illegal before 1968, but they were done!) may be 
unquestionably "useful," but that doesn't mean that they are acceptable.  If 
anything, the fact that cops would use illegal tactics proves that they 
aren't very good judges of what tactics are appropriate.  Furthermore, the 
fact that telephone companies ALLOWED cops to do illegal wiretaps before 
1968 (and even assisted them) proves that you can't depend on them to limit 
these tactics to reasonable limits.


>>One thing that was very important to those who wrote the US Constitution was 
>>the sanctity of contracts.
>
>well, if the person entered in a contract with their phone company
>to provide protected communications, maybe you'd have a case there.
>in fact such a thing is not such a bad idea.

Since up until now people have not had a choice, I think it's appropriate to 
assume that every telephone customer would have been entitled to insist on 
an anti-wiretap clause, and got it.


>>As I understand it, there is a principle in law that all affected parties to 
>>a dispute must be included in a proceeding. (To ensure that each can protect 
>>his own rights.)  Obviously, targets of wiretaps have not been informed, and 
>>thus can't possibly have been included. 
>
>on the other hand, there are clear laws that say you can't withhold
>evidence. 

That's misleading.  If a cop wants in your house to collect evidence but he 
doesn't have a warrant, not letting him in is "withholding evidence."   But 
that's obviously okay.  So you need to qualify that claim.


>>While I'm sure that I will be corrected if this is wrong, somehow I doubt 
>>whether there has EVER been a "before-the-fact", full challenge of a wiretap 
>>order _including_ representation for the target of the wiretap.  Further, I 
>>also doubt whether there is frequently ANY SORT of challenge to a wiretap  
>>by a telephone company, even when the target was not informed.  Quite 
>>simply, the telephone company does not consider itself to be in the business 
>>of protecting the rights of its customers!  And without real challenges, 
>>there can be no presumed validity to such warrants.
>
>no, you have it backwards; without real challenges, there 
>is no validity to anyone trying to defeat the status quo.

That depends on whose burden of proof you think it is.  Since:

1.  Wiretaps were done illegally before 1968, demonstrating that the people 
involved (cops, government officials) don't think they have to obey the law 
anyway.  This should destroy any presumption on your part that wiretaps are 
constitutional, because those people are the main ones pushing wiretaps.

2.  60% of the public opposes wiretaps, period.  (I think it's arguable that 
if most of the public decides that society should do without wiretaps, they 
are entitled to do this.  Otherwise, "Who's country is it?")

3.  Wiretaps do not resemble ordinary searches, because the target is not 
informed, and he's not given a chance to challenge them.

4.  Wiretaps have "never" been adequately challenged, precisely because the 
only outside people who know about them have no motivation to do them.  
(Primarily telephone companies.)


I'd say the bulk of the evidence is that the legal system accepts wiretaps 
simply as a convenience, without genuinely believing that they are 
constitutional.

>
>[bernstein, etc]
>>Since it has always been legal to use encryption (in the US), they're really 
>>not "challenging the cryptographic status quo."
>
>no, ITAR has been around a long time and they are challenging it. you're
>mixing up the issue.

No, YOU'RE mixing it up.  _DOMESTIC_ wiretaps are being compared with 
DOMESTIC use of encryption.  ITAR says nothing about wiretaps.  

The government is pushing Clipper et al based primarily on domestic wiretap issues.

>>I don't know about you, but somehow I'm past the idea that it's possible to 
>>reliably get unbiased justice in court.  Know what I mean?
>
>ah yes, we revert to the basic cypherpunk nihilist position oft repeated
>by lucky green, tcmay etc-- "essentially, we're screwed"

Not really.  It's just that when there's enough evidence of dishonesty 
already in the treatment of this issue in the courts, there is no reason to 
presume that the right decision will be reached in the future.


Jim Bell
jimbell@pacifier.com