From: Greg Broiles <gbroiles@netbox.com>
Date: Mon, 7 Oct 1996 10:06:47 +0800
To: "Vladimir Z. Nuri" <vznuri@netcom.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <3.0b28.32.19961006163919.00700398@ricochet.net>
MIME-Version: 1.0
Content-Type: text/plain


At 08:43 PM 10/5/96 -0700, Detweiler wrote:
>>"Right to choose to be in contempt of court" ?  If only I could attach a
>>sound file with my howling laughter to this post.
>
>I find it as ludicrous as you do, but it's the clear insinuation
>suggested by hard-core cypherpunks / anarchists in this forum.

I wrote something which you might be confusing for this argument; in case
this is what you mean, I've reproduced it below:

[originally sent on 9/18/96]
>There's a world of difference between the government subpoena-ing
something >from me, where I can delay disclosure until I've exhausted my
legal avenues >to challenge disclosure, and the government demanding data
from an at best >disinterested third party who cares not at all if I get my
day in court >before they disclose. With the second scenario, I'm forced to
try to >"unring the bell", and somehow limit the spread of otherwise
>private/confidential data in a community (law enforcement) which is
>organized to collect and retain information. Ha, ha. Given today's
Congress >and Supreme Court, there's probably precious little chance that
keys >disclosed prematurely or erroneously won't be used to collect
evidence >which will be admissible despite the lack of meaningful
opportunity to >challenge the "recovery" of a key.

Also, there is an important difference between making a policy argument or
expressing a preference, e.g.:

"I like having a choice between disclosing information which is requested
and suffering the penalties for contempt of court"

and an argument about the constitution:

"The constitution says I must be given a choice between disclosing and
contempt." 

I don't remember seeing any examples of the latter come across the list. As
I remember things, the context of my statement above was a discussion of
why third-party key escrow is not the same as self-escrow. 

>>Do not make the mistake of thinking there is no case law on wiretap simply
>>because you have not/are too lazy to go to the library and look it up.
>
>I said, "at least it is rarely quoted here", lawyer-boy.

It's rarely quoted here because it is unremarkable; just as the list is not
a place for basic crypto education, it is not a place for basic legal
education. It's difficult to come up with a good summary of legal issues or
subjects which is readable by lay people and short and accurate (esp. given
that it will be interpreted by lay people in potentially 51 domestic
jurisdictions, plus foreign folks).

Good, fast, cheap, pick any two. 

As Brian Davis and Uni have pointed out, people who keep current enough on
legal topics to be able to give you a good answer will probably want to get
paid for doing so. Saying "here's a legal argument that I made up in the
shower. what do you guys think of it?" and expecting a detailed explanation
of why it's good or bad is the same as saying "here's my new crypto
algorithm that I thought of in the shower, what do you guys think of it?". 

>>You propose to refight a case soundly resolved ages ago and you propose to
>>get the rest of the list to do your homework for you.
>
>nevertheless, you might not come off as so utterly condescending
>and self-pretentious if you gave even the slightest smidgeon
>of a reference yourself, instead of preferring to insult a poster.

Merely asking the question "Is there case law on wiretaps?" suggests that
an answer which includes references will be wasted on you. It will probably
be wasted because your level of interest doesn't seem to have spurred you
to darken the doorstep of a library or bookstore yet; so an answer which
requires you to do so seems unhelpful. It will also probably be wasted
because if you don't already know that there's caselaw about it you
probably don't have enough legal background to place whatever new
information you might get from those references in a useful conceptual
framework. 

But perhaps my speculation is wrong and you are prepared to follow up
meaningfully on references, so ..

Go to a law library or larger general library and ask the librarian to show
you where the annotated copy of 18 USC 2510 is. Read the statute. Read the
legislative history. Read the annotations. Read the cases which were
annotated. Repeat this process until you reach 18 USC 2709 or die of boredom.

Ask the librarian to help you find LaFave's treatises on search & seizure.
Read them.

(The answer to most of the "how do I find out about 'X'?" questions is to
make friends with a librarian who doesn't mind helping you out, just like
with research questions in other fields you may not be familiar with. But
surely it's not possible to get much beyond the age of 12 or so and not
know that ..?)

Try "Understanding Criminal Procedure" by Dressler (Matthew Bender, 1991),
and "Criminal Law" by LaFave & Scott (West). 

(For extra credit, ask for the USCA/USCS annotated copy of the Fourth
Amendment, and read those annotations and cases.)

If there's a law school near you, you might go to the school's bookstore
and look for books in the "Nutshell" series, or the "Emanuel's" series, or
the hardbound hornbooks. These books are mostly used by law students to get
an overview of a particular area of the law. They are not especially
detailed nor up-to-the-minute current but usually aren't totally wrong.
They also don't usually touch on a particular state's law, but discuss
either federal law or an amalgam of state law, so they aren't good for
solving a particular concrete problem. But they will help you figure out
that, e.g., wiretaps have been legal for at least 60-70 years.

Now that you've got some references to work with, please write back and
tell us what you learned. 

(Dorothy Denning & others have written a summary of wiretap procedure which
I don't have time/energy to check for correctness - but it's at 
<http://www.cpsr.org/cpsr/privacy/communications/wiretap/denning_wiretap_pro
cedure_paper.txt>. EFF and CPSR both seem to have some wiretap/privacy
materials available.)

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