From: jim bell <jimbell@pacifier.com>
Date: Wed, 9 Oct 1996 14:32:23 -0700 (PDT)
To: Black Unicorn <unicorn@schloss.li>
Subject: Re: Creative Wiretap Arguments [Was :Re: Put up or shut up]
Message-ID: <199610092130.OAA16970@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 01:37 AM 10/9/96 -0400, Black Unicorn wrote:
>On Tue, 8 Oct 1996, jim bell wrote:
>> 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 disagree.  There is lots of potential precident.  The entire concept
>that data voluntarily turned over to a 3rd party is not entitled to 4th
>amendment protection (i.e., pen registers) is just the one that happens to
>jump to mind. 

Given that the "constitutionality" of pen registers is pretty intimately 
tied up with the ADMITTEDLY illegal usage of wiretaps before 1968, that 
hardly qualifies as a settled issue.  (I say this from the standpoint of 
"what really oughtta be" rather than "what those nine morons will accept.")

BTW, it is unclear why this argument ("data voluntarily turned over to a 3rd 
party") couldn't "automatically" be applied to telephone audio itself.  
After all, in order to get the audio to the other end, you have to convert 
it into varying electical signals, which are "turned over to a 3rd party", 
the telephone company.
The distinction between these two forms of information is pretty flimsy. 
(Chances are excellent that the only reason for any distinction between them 
at all originated back before 1968, when wiretaps themselves were considered 
illegal, and the cops wanted to be able to justify what they probably called 
a "minimal" violation of privacy short of being able to hear the audio 
itself.  Now that the wiretaps themselves are called "legal" I suspect that 
the cops will have reverted to the assertion that this information is 
essentially identical from a warrant standpoint.)

Another possibility is that this is simply a holdover from the time when 
automated switching of telephone lines was essentially unknown:  To make a 
telephone call, you "had to" tell the operator the number you were calling, 
and thus presumably you'd "voluntarily" turned it over.  However, that 
presumption evaporated once automated switching took over, and there's no 
requirement that the telephone switch makes a permanent record of any given 
phone call.

"Naturally," the cops would have argued that the advance of technology 
(automatic switching) would "make futile law-enforcement access" (much as 
they are now claiming the advance of encryption will do) and would have 
argued that the new technology shouldn't prevent them from knowing who is 
making phone calls to whom.

Isn't it interesting that when an advance in technology allows the cops to 
do something they hadn't been able to do before, they accept it as if it's a 
done deal, whereas when technology starts taking away an ability they howl 
"like a stuck pig."  Sounds pretty selfish to me.


> The fact that the government has had to deal with
>the breakup of ma bell and cooperate with several different phone
>companies now suggests to me that not much of a leap is required to
>include ISPs.  Constitutional arguments that ISPs are somehow different
>from phone companies and therefore not required to comply with wiretap
>orders?  Good luck.

All of which are still monopolies, at least in their defined areas of 
business.  And customers have no choice of who to deal with, as a result.  
Thus, phone companies never had any motivation to satisfy their customers by 
fighting wiretap warrants in court.  Etc.   ISP's are not monopolies, they 
are not common carriers, etc.  ISP's, quite simply, are entitled to write 
their OWN rules about how they deal with customers.  One the whole, I'd say 
there are plenty of differences between a plain-vanilla telephone company 
and an ISP.



>I know its fun to make the argument that ISPs and E-mail and NetPhone are
>all new technologies and so it must be unconstitutional to regulate them
>but the amusement in these cases stems from a wish that it was so, not
>fact or reason.

I didn't mention, "unconstitutional";  it's possible that it's simply 
"illegal", as in, "there's no law yet which allows "ISP-tapping."  In the 
same sense as wiretapping was illegal before 1968.

BTW, I'm not saying that "normal" wiretapping can't be done on an ISP.  In 
other words, arguendo the cops would only be entitled to connect to the 
phone line(s), as in an ordinary wiretap.  But that might be pretty damn 
ineffective, given that even a typical small ISP probably has a hundred or 
more phone lines to monitor.  In other words, there's no single point where 
the cops can clip on the clip leads and get the data they want.

Which raises the issue, "Is the ISP required to install 'wiretap-friendly' 
capability?"  Apparently not, if the cellular phone industry is any 
precedent:  For awhile, cops couldn't easily tap cell phones because no such 
capability had been designed into the cell-site software.  Such an omission 
was not considered a violation of law.



>> 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.
>
>"I content that a phone company 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."  Yeah.  Good luck. 

It looks like you're not very perceptive.  Notice I said "minimize his 
ability to cooperate."  As far as I'm aware, telephone companies are not 
required to keep many of the records they currently keep.  If they contract 
with a customer to not keep those records, the inability of the cops to get 
those records is not any sort of violation of law.





Jim Bell
jimbell@pacifier.com