From: jim bell <jimbell@pacifier.com>
Date: Tue, 8 Oct 1996 13:10:13 +0800
To: "Vladimir Z. Nuri" <gbroiles@netbox.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <199610080151.SAA06373@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 02:22 PM 10/7/96 -0700, Vladimir Z. Nuri wrote:

>>and an argument about the constitution:
>>
>>"The constitution says I must be given a choice between disclosing and
>>contempt." 
>>
>>I don't remember seeing any examples of the latter come across the list. As
>>I remember things, the context of my statement above was a discussion of
>>why third-party key escrow is not the same as self-escrow. 
>
>the point is that many cpunks feel that  warrants and wiretaps and
>subpoenas are things to defy. it's a hypocritical double standard
>in which they cloth themselves in the wrapping of the constitution
>or law whenever it is useful to their arguments, and then advocate 
criminality,
>such as via defying legal warrants etc, whenever the case suits them.

Grandly ignoring the 5th amendment, I see?!?  I don't see any contradiction: 
 We can look to the Constitution, simultaneously, for rights for ourselves 
AND for restrictions on government. 

>
>[wiretaps]
>
>>It's rarely quoted here because it is unremarkable; just as the list is not
>>a place for basic crypto education, it is not a place for basic legal
>>education. 
>
>ooops, you fell for Unicorn's muddying misstatement of my question. OBVIOUSLY
>there is lots of case law on wiretaps. what I was trying to point out
>was that I find little discussion of cases here trying to discredit
>wiretap law for various reasons, such as that the wiretapped
>person is not informed. the distinction of the person *not*being*informed*
>of the wiretap is very important as otehrs here agree, and I would
>expect everyone would be familiar with a simple case that gives a 
>decision on it (in much the way many constitutional cases are
>regularly quoted) or that people would advocate wiretap law would
>be challenged on the basis of the lack of such a precedent case.

Now _THAT'S_ a very valid point.  Unicorn totally ignored that issue.  I 
pointed out my expectation that the only reason wiretaps are secret is their 
technical ability to do them while staying secret.

I've occasionally pointed out that if tomorrow, scientists discover some 
sort of teleport system that allows cops to sneak through walls, at the same 
time being invisible, cops and judges will suddenly announce that the 
requirement that people searched need to be informed of that search is, uh, 
no longer applicable.

This is a problem.  No, not the precise hypothetical I imagined above; I 
don't think it's going to be possible as stated for a long time and probably 
never.  The problem, however, is that "the authorities" have respect for the 
rights of the citizens more in the breach than in the observance, and if 
they find what they consider to be a good reason to ignore them, they will 
with little hesitation.


>>(The answer to most of the "how do I find out about 'X'?" questions
>
>you have a lot of good advice, but I ask none of the things you are
>attributing to me. I simply would like to carry on a discussion with
>a civilized lawyer who specializes in the subject, rather than have
>a people tell me why I cannot even do this, and must become a law
>specialized before I can even use the word "wiretap" with any 
>meaningfulness.

It's particularly pointless that some of these lawyers keep saying things 
like, "You don't understand how the law works!" when it is quite obvious 
that in most cases, the people who are complaining DO know enough about how 
the law works to identify when it is being abused.  This is not surprising:  
For example, I can't ice-skate worth beans, but I easily tell the difference 
between a bad and a good ice-skater.  I can't make music, but I can tell the 
difference between bad and good music.  I don't know much about 
architecture, but if I see a building collapse I can see that somebody made 
a mistake.  I don't act, but I can tell the different between a good and bad 
actor.

It is a frequent conceit among "experts" that the only people who should be 
able to criticize them are people who know as much as they do on a 
particular subject.  Black Unicorn is particularly bad in this regard.


>the chief point of my post was to question why the EFF etc. are not
>at all interested in challenging the wiretap "status quo" in spite
>of what many people here believe/advocate-- that wiretapping was
>never legitimate in the first place. this is curious because EFF
>etc. *are* willing to back up the cryptography cases out there,
>ala Bernstein etc.

Probably mostly because they expect that the government is going to be 
completely unwilling to admit that it's wrong.  In fact, of course, that's 
exactly why the government is very much afraid of the advent of good encryption:  
Ubiquitous crypto telephones make the government's use of wiretapping 
irrelevant, totally without regard to what any cop or judge or prosecutor 
says.  Fundamentally, it's a technical fix to a legal mistake.


Jim Bell
jimbell@pacifier.com