From: Black Unicorn <unicorn@schloss.li>
Date: Sat, 5 Oct 1996 15:41:08 +0800
To: "Vladimir Z. Nuri" <vznuri@netcom.com>
Subject: Re: legality of wiretapping: a "key" distinction
In-Reply-To: <199610042004.NAA27789@netcom7.netcom.com>
Message-ID: <Pine.SUN.3.94.961004210349.21413A-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 4 Oct 1996, Vladimir Z. Nuri wrote:

[...]

> 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.

This is hardly news.  An old and inconsequential distinction
unfortunately.

> 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?)

"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 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?

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.

> 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.

Tried and failed decades ago.

> 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>)

Again, you're late.  Several years too late.

> 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.

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.

I propose you go to the library and do your own work for a change.

> ==
> 
> 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 wonder what caused you to think this was some kind of novel revelation.

> 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?

I know you think you're being very clever and original, as if somehow you
aquired the skills of a noted constitutional scholar whilest no one was
looking. I also know that you have not bothered to research your own
claims.  I can't decide, however, if this is cleverness on your part in
trying to get someone else to do all your work for you, in which case it's
not working on me, or simple laziness, in which case it's apparent and
unsurprising.

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li