From: Greg Broiles <gbroiles@netbox.com>
Date: Mon, 7 Oct 1996 07:35:09 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <3.0b28.32.19961006142521.00700398@ricochet.net>
MIME-Version: 1.0
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At 06:10 PM 10/5/96 -0800, Jim Bell wrote:
>At 02:14 PM 10/5/96 -0700, Greg Broiles wrote:
>>At 04:42 PM 10/4/96 -0800, jim bell wrote:
>>>I think it's really very simple.  Wiretaps in the US were illegal until 
>>>1968.
>>
>>Then please explain what the Supreme Court was doing some 40 years prior to
>>1968, in _Olmstead v. US_ 277 U.S. 438 (1928), where the product of a
>>wiretap was held to be admissible because without a physical trespass there
>>was no Fourth amendment violation. (This is no longer good law.) 
>
>Then you ignored the rest of my commentary.  While wiretaps were narrowly 
>held "constitutional" in about 1932, as I vaguely recall, that doesn't mean 
>that they were LEGAL:  On numerous occasions subsequent to 1932,  Congress 
>rejected laws which would have legalized the use of wiretaps.  They were not 
>provided for under law.  Obviously, you could take the position that 
>Congress could have approved of them at any time, as they did in 1968, but 
>apparently it took such approval to _legalize_ them.

Congress doesn't need to explicitly approve the use of new investigatory
tools or techniques. Do you think that cops needed special legislation
before they could use cars, or telephones, or helicopters, or cameras, or
fancier guns, or ..? 

Also, Congress is not the only legislature to think about - the individual
states can (and have) developed their own statutes relating to wiretaps,
law enforcement use of wiretaps, and so forth. (See, e.g. Cal. Penal Code
s. 630 et seq, Oregon Revised Stats. s. 165.540 et seq) 

Also, Congress' intent when it passed Title III in 1968 was not to
"legalize" wiretapping but to standardize it. I quote from Pub.L. 90-351
(1968):

    "On the basis of its own investigations and of published studies,
	the Congress makes the following findings:

	(a) Wire communications are normally conducted through the use of 
	facilities which form part of an interstate network. The same
	facilities are used for interstate and intrastate communications.
	There has been extensive wiretapping carried on without legal 
	sanctions, and without the consent of any of the parties to the
	conversation . . . The contents of these communications and
	evidence derived therefrom are being used by public and private
	parties as evidence in court . . .

	(b) In order to protect effectively the privacy of wire and oral
	communications, to protect the integrity of court and administrative
	proceedings, and to prevent the obstruction of interstate commerce,
	it is necessary for Congress to define on a uniform basis the
	circumstances and conditions under which the interception of wire
	and oral communications may be authorized . . ."

It took me less than ten minutes to find that. You could have taken that
ten minutes instead. It's abundantly clear that you don't give a shit about
the accuracy of what you write. If you're making things up or speculating,
you could at least say something like "I think Congress was probably acting
to legalize previously illegal wiretaps in 1968", so that it's clear that
you're writing on the basis of speculation, not research. It'd also be nice
if you'd add some sort of indication that you're posting about your own
secret version of the law instead of the one that's used in courtrooms, but
I'm going to go ahead and assume that the former is what you mean in the
future.  

>You're ENTIRELY misunderstanding (or misrepresenting) what I'm saying!  I'm 
>well aware that the SC disagrees, but that is simply because they are 
>entirely wrong in this matter.  Why should this surprise you?  Given the 
>rash of 5-4 decisions in the last few years, there can be no illusion that 
>they always come to the right decision.   I don't claim that they agree with 
>me, quite the opposite.  But if anything, their error justifies removing 
>them by whatever level of force turns out to be necessary.

As a matter of Constitutional interpretation, the Supreme Court cannot be
"wrong". You and I can disagree with them, but their interpretation is the
magic one that trumps ours in court. If we're going to try to organize our
lives around a body of writings (e.g., laws) it's not useful for everyone
to make up their own meanings for the laws because if we're all following
different laws, that's more or less the same as having no law at all.
Somebody's interpretation has to be the "right" one; and the United States
is organized and has evolved such that the Supreme Court's is the right one. 
I think it's reasonable for you to say that you don't want to play that
game, but I don't see why you need to pretend that your failure to play the
game has anything to do with law or legal reasoning. 

If what you want is anarchy (and as I understand things, you're arguing
that people should live by their own interpretation of what's right and
wrong, and should kill people who disagree with them, which seems like a
fair although unnecessarily dismal view of anarchy), there's no point in
arguing about the Constitution. 

>> Here's a tip: if you think of a
>>way to interpret the Constitution that would make law enforcement not
>>merely less efficient but effectively impossible, your interpretation will
>>not be adopted, 
>
>Your statement is inadvertently illuminating.  Legal decisions are not 
>supposed to be made by people who have a stake in the outcome.  Here, you 
>are acknowledging that there is no way to expect the current legal system 
>will come to any kind of objective  decision concerning these matters, 
>precisely because they would reject any decision which was seen as
>"mak[ing] 
>law enforcement effectively impossible."  This sounds like a classic 
>conflict-of-interest, huh?  It's not quite the same as receiving a bribe,  
>or falsely convicting an ex-wife's lover of murder, or some sort of purely 
>personal issue.  Nevertheless, it is a conflict of interest.

It's not inadvertent - I meant what I said. The Constitution is a document
for organizing a government. If you're going to interpret it into such a
pretzel-like format that it no longer describes a functional government,
it's much more sensible to just say "I don't want to have a government". If
you do want to have a government, interpretations which prevent it aren't
useful. 

Your hypothetical "conflict of interest" problem seems beside the point; I
don't see how the "can government ever be legitimate?" or "can the
government exist?" or "can the government act to enforce the laws?" sort of
questions which would create a conflict would ever really be up for debate.
There's simply no meaningful argument that the Constitution was intended to
do anything but create a government; and it envisions that the executive
branch will enforce laws that the legislature chooses to enact.

Again, there are certainly other ways to organize human behavior and human
societies. But they don't need to have anything to do with the Constitution. 
In particular, I don't see any reason to try to make anarchy and the
Constitution compatible in some perverted logical universe. 

>And BTW, you vastly overstated your case by suggesting that the rejection of 
>wiretaps would "make law enforcement...effectively impossible."  Before 
>telephones, there were no wiretaps, right?!?  (I won't claim "justice was 
>done," then, but they would have claimed it was...)    And even today, 
>probably 99%+ of cases decided by  courts within the US do not contain any 
>wiretap evidence at all (I invite you to correct me if I'm wrong, here!) so 
>I suggest that it is obvious that even the complete rejection of wiretaps 
>wouldn't "make law enforcement...effectively impossible."  (how could it?)

Sorry. I skipped a step. I see no meaningful distinction between wiretaps
and other searches & seizures. The rule you want to apply to wiretaps
should, if it's a good rule, be applied to all searches & seizures. There's
nothing special about phone calls.

If we're going to give people notice & an opportunity to be heard before
even preliminary steps are taken in a criminal proceeding, very few
prosecutions will get off the ground. (We can either leave people free
pending decisions about searches & arrests, in which case they've got
reason & an opportunity to make themselves scarce or destroy evidence; or
we can lock them up and seize their houses while arguing about
search/arrest warrants, which is also a problem because most of the
evidence about guilt or innocence isn't available yet .. so you're holding
people & property with very little evidence of wrongdoing. And that's not
constitutional or good.)

Also, the premises of your argument were known at the time the Fourth
Amendment was written & adopted. I think that if the writers & adopters had
meant for there to be a pre-search hearing for the target of the search,
they'd have said so.

You and Detweiler seem to be missing the distinction between what's
constitutional and what's useful or possible. I believe that wiretaps are
constitutional (assuming the cops jump through all the right hoops). I
believe that laws which force me to use wiretappable phones in my home or
business are unconstitutional. If many people use unwiretappable phones
then wiretaps will become obsolete. But they will still be constitutional
in their obsolescence. These two approaches "wiretaps are not allowed" and
"wiretaps are allowed but citizens are able to make them ineffective" do
reach a similar result (very few or no wiretaps) but the approach used to
reach the result is meaningfully different. In particular, the second
approach doesn't require a reorganization of search & seizure law. Such a
reorganization is unlikely to occur.

>>and therefore is not useful.
>
>No, actually it's potentially quite useful!  It's just highly embarrassing 
>for anyone who has a strong psychological stake in working entirely within 
>the American legal system.

Your arguments are only "highly embarrassing" to someone who identifies
with the legal system only in that they have enough buzzwords and are
internally consistent (even if based upon fantasy) enough that people with
no meaningful contact with the legal system might mistake you for someone
familiar with it. 

>>It might or might not be
>>theoretically elegant or logically attractive, it will not be adopted. So
>>stop thinking about it. 
>
>Ultimately, I don't think there's even a choice in the matter:  The current 
>system WILL be dropped, possibly directly onto the heads of the people who 
>currently populate it!  Are you going to be part of the solution, or part
>of the problem?

Depends on your perspective.

As this is really no longer even tangentially related to technology or
privacy, I won't post further about it (absent a renewed connection to
technology or privacy, which I don't anticipate). Jim, you and anyone else
who wants it are welcome to the "last word". Please don't interpret my
failure to respond as agreement or endorsement of anything beyond an
attempt to get the list back closer to being on-topic. 

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