From: jim bell <jimbell@pacifier.com>
Date: Wed, 9 Oct 1996 12:06:00 +0800
To: cypherpunks@toad.com
Subject: Re: Put up or shut up
Message-ID: <199610082336.QAA24221@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 06:45 PM 10/6/96 -0700, Steve Schear wrote:
>Using, as you say, out-of-the-shower ideas to re-argue settled caselaw are
>almost always fruitless.  Since the intents of the ranters are generally
>anarchistic, why even involve the law and justice. Even if their ideas have
>good philosophical basis there is little hope for the broad changes they
>seek in the political or legal landscape (given the powerful and selfish
>interests of those inside and outside the beltway) without a great trauma
>to the system.  

Maybe you're missing the point?  Even if you accept the idea of wiretapping 
telephone lines, one of the things that _isn't_ settled is how law is going 
to start treating ISP's.  That, let me point out, IS NOT settled law, and in 
fact it hasn't really even started, so those lawyers who have a knee-jerk 
tendency to accept precedent don't have any precedent to accept!  (unless, 
of course, they "pre-accept" the assumption that what the government can do 
WRT ISP's is somehow identical to what they do with telephones.)

I see two broad and conflicting ideas of what the government can do in a 
search. The first is a classic search warrant, which simply allows the cops 
to go in and look around, for a comparatively limited amount of time, 
informing the person searched,taking a few things, and then _leaving_.  
Period.  Generally, they can't sneak in, they can't hide in the closet for 
weeks or months, etc.

Without effective challenge by telephone companies (which have no motivation 
to challenge it) there has been a very different precedent set, that of the 
wiretap:  No informing the target at the beginning, indefinite time limit, 
and not necessarily even informing those tapped after it's over.  _VERY_ 
different.

The question is, which of these precedents should control ISPs?  Police, 
obviously enough, would probably want to insinuate into the game with the 
assumption that the latter scenario rules.  After all, they're talking about 
wires and electricity, right?  That sure sounds like wiretapping, right?

I contend that an ISP should be entitled to enter into a contract with his 
customers in a way which obligates him to structure his business to minimize 
his ability to cooperate with police when given a search warrant.  One 
example which occurred to be months ago (which, amazingly, shut up even 
Black Unicorn!) was that the ISP could agree to encrypt any email received 
with the user's public key (or another public key whose private key is known 
only to the user) so that useful information is only ephemerally available 
in the ISP's computers.  A few seconds after it arrives, it's been encrypted 
and is "gone" from the standpoint of the ISP.  Only the user, when he logs 
in and after he downloads the encrypted files, can decrypt them.

But that raises another question.  Suppose the government, not liking this 
situation, decides to not merely do a search, but in fact order the ISP to 
turn off the encrypt-on-receipt feature?  And more particularly, to do so 
without telling the customer?  What if, in fact, they order the ISP to LIE 
about this?  Or what if they order the ISP to change his system's software 
to store away an unencrypted version of the messages so as to bypass this 
protection?

My answer to all this should be obvious:  There is a vast difference between 
doing a "search" and, in effect, turning an ISP into a slave who has to say 
"how high?"  when the government says "jump."  Arguably the ISP has to 
consent to a search; I don't think he has to change his business practices 
in order to make those searches more useful.  And I think he's entitled to 
make promises to his customers that he's obligated to keep, even when the 
government would want him to break them.

However, I won't claim that this matter has been settled; in fact, it's 
probably an issue that never came up before, in any court.  That's why I 
think it's important to ensure that ISP-law does not follow is the bad 
precedents set by wiretap law.  



Jim Bell
jimbell@pacifier.com