From: "Vladimir Z. Nuri" <vznuri@netcom.com>
Date: Sat, 5 Oct 1996 07:05:41 +0800
To: cypherpunks@toad.com
Subject: legality of wiretapping: a "key" distinction
Message-ID: <199610042004.NAA27789@netcom7.netcom.com>
MIME-Version: 1.0
Content-Type: text/plain



reponses to my last post were very illuminating and
interesting, and one key point by someone-or-other
caught my attention.

he made the distinction of "search and seizure" made with
the knowledge of the person involved, and "search and
seizure" such as wiretapping done without the knowledge
of the person surveilled.

if one were to try to say that wiretapping was unconstitutional,
it seems one would have to define why it is an *unreasonable*
kind of search and seizure. and this distinction might be a
great, prime candidate: because the participant is *unaware*
of the "seizure," there is too great a potential for abuse.

it seems to me many people's fears here boil down to this
fear of the government surveilling them without their knowledge,
of them being denied the right to choose to be in contempt of
court and reject handing over information when presented with
a warrant/subpoena. (is this a right? is it being broken by surreptitious
surveillance?)

==

I am really amazed that there isn't much case law on wiretaps, which
have been around a long time. at least it is rarely quoted here.
what exactly is a legal wiretap? has anyone challenged the fundamental
authority of the government in making wiretaps in which subjects
are unaware of the metaphorical "search and seizure" going on?

recent Bernstein and Junger cases are going to be fantastic milestones
in our legal system for challenging the cryptographic status quo.
I wonder if cpunks might be interested in challenging the 
wiretap status quo!! it would seem like the first logical step.

the FBI has often said they don't want to expand their powers in 
wiretapping areas. but are those powers they have right now legitimate?
if they are not, as many here seem to argue, 
then they ought to be challenged in court ala the one-man-guerilla
attacks like Bernstein and Junger. (any takers? <g>)

anyway, I propose that cpunks try to collect all the minutia in the
case law about wiretaps and try to make the case that wiretapping
that the FBI has enjoyed is itself not legitimate, and therefore
any extension of it (such as Clipper) is also illegitimate.

==

more and more I wonder if this is one of the key differences between
libertarian and spook bureacrat's views on GAK, key escrow, key
recovery (let us put it all under the heading "key access"). the
spooks seem to emphasize that they should be able to get access
to communications without giving anyone the opportunity to refuse
or possibly even know about such access. libertarians seem to
insist that this is a violation of privacy and due process etc.

I think there may be a legitimate argument here that might have
legal merit that a reasonable "search and seizure" ought to
involve the knowledge of the participant, and that unreasonable
searches and seizures often do not. hence, wiretapping without
suspect agreement may be illegal? (in all the other ways that
evidence is obtained through warrants/subpoenas, one needs
the cooperation of the suspect?)  obviously the government would
argue that the cooperation of the suspect is irrelevant and
impossible. what exactly does it mean to "present a warrant"
or subpoena? is there a right to refuse such a subpoena similar
to the way one is guaranteed freedom from self-incrimination?