From: "Vladimir Z. Nuri" <vznuri@netcom.com>
Date: Wed, 9 Oct 1996 09:44:09 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: legality of wiretapping: a "key" distinction
In-Reply-To: <3.0b28.32.19961007201030.0071b3b0@ricochet.net>
Message-ID: <199610081924.MAA27994@netcom15.netcom.com>
MIME-Version: 1.0
Content-Type: text/plain



>This sounds like a very reasonable proposal. But please don't take a lack
>of response to your speculation as an endorsement of your idea, or a
>suggestion that it's got even the teeniest shred of merit. I understood you
>to be suggesting that because nobody's shown to your satisfaction that it's
>meritless, you've somehow stumbled across something important. 

how about this-- to please you and Unicorn
I'll be very, very careful in the future about insinuating that
anything I have to say is important. (g)

the point of the post was simply, "gosh, here is something that
would be interesting to have a discussion on here, and I don't
recall much of it before on this list, and it seems like some
people here would have some knowledge in the area they might
like to share". 

of course lack or presence of a response to anything I or anyone
else says here is a pretty meaningless metric. but I was speculating
that there might be some weaknesses in wiretap laws because it didn't
seem like there had been a huge amount of attention focused on them
based on what I've seen on this list-- relative to the *enormous*
attention focused on ITAR case law, software patents (esp. crypto), etc.

>This response illustrates precisely why Uni was reasonable in declining to
>give you references. If you're not willing to look up your own crackpot
>ideas, you certainly shouldn't imagine that someone else is.

a hint to you: lack of response is sufficient to discourage further posting of
"crackpot ideas". responses, even negative ones, tends to encourage them.

>You can no more meaningfully discuss law without learning about it than you
>can discuss cryptography or biology or philosophy or any other area of
>human scholarship and knowledge.

laymen regularly have conversations with specialists, with the layman
saying, "now why ...", and the specialist may sometimes say, "y'know,
I'm not sure, I'll have to check on that myself".  there are laymen
and specialists alike on this list. I freely declare myself a layman
on the subject of law, and I think a lot of the bile aimed at me is
by people perceiving that I was somehow insinuating otherwise. part
of the fun of cyberspace imho is seeing the *civilized* 
discussions that go on between layman and specialists and the 
information transfer therein. that's the epitome of a FAQ. and if
cpunks in general weren't so elitist and hostile to newcomers, there
might be a FAQ here by now for example. ug, but I don't want to
get into FAQ flames. (of course I am aware of the cyphernomicon, 
but don't consider it very "faq like")

>You can, if you want, try to work on similar questions in parallel with
>established institutions - probably all fields have a group of rogue
>scholars or dissidents who believe nonstandard things, adopt nonstandard
>methodologies, etc.

nothing I said had any crackpot content. if you read carefully, I didn't
say, "there is no major case law on wiretapping" although Unicorn is
attributing similar statements to me. I'm merely saying, "hey guys,
it would be interesting to focus some attention on wiretap case law
in the same way rapt attention is being focused on e.g. ITAR etc."
I fully agree that Bell has some really fringe ideas about the law,
but it was Unicorn who grouped me in with Bell. I find myself agreeing
with some of his points, but nothing regarding novel interpretations
of laws unrecognized by the court system.

> I
>think that it's interesting and good that people are working on their own
>theories of law apart from the traditional institutional ones.

for the record, that's something Bell is doing that Unicorn mistakenly
attributed to me. I'm advocating challenging the laws not via anarchy
or technical means but using the built-in
mechanism to do so-- the appeals process.

>I think it's a shame when people excited about
>their own legal theories get innocent third parties roped into these
>peculiar scams. (Then again, there's the argument that this is evolution in
>action.)

point well taken.

>So that's a long way of saying "plonk." I don't think it's productive for
>me to try to keep track of multiple versions of the constitution; and I've
>settled on the one that's used today in court as the one I'm going to pay
>attention to. I don't get the impression that you care about how things
>actually work; you seem much more interested in making some baroque
>rhetorical point about how all cypherpunks are evil.

ahem, no I take pains not to "demonize" them. <g>

 (In particular, I'm
>suspicious that you think wiretaps are unconstitutional yet it's evil to
>try to avoid them with crypto.

whoa, I don't call anything evil and I didn't call wiretaps unconstitutional.
I said that they *might* be, and I'm interesting in exploring arguments
that support that view. there is much example in law of laws that were
passed and considered "constitutional" until they were appealed to the
supreme court. I am asking about similar situations relative to wiretap
law. I'm saying that a supreme court case is about the final straw, and
lacking that, there may be a route to actually legally refuting wiretapping.

what I am saying is that cpunks can't have it both ways. either you
agree with the law or you don't. you can't pick and choose. if you disagree
with the law, you would do things like defy legal warrants using crypto
and refusing to hand over keys even when given a valid subpoena. such
a position is anti-law and anti-constitution imho.

 I think you want someone to write you
>several pages' worth of memorandum about how wiretaps are legal, so that
>you can cleverly turn around and argue that defeating something which turns
>out to be so clearly legal must, in fact, be wrong. And I think you take
>that position simply to be contrary.)

sounds like something Bell would do. no, I'm looking for weaknesses in
wiretap law such that a seasoned lawyer might mount an actual legal
case in trying to appeal to the supreme court and get a favorable decision
that rules wiretapping in certain kinds of situations  illegal. there
are definite restrictions on wiretapping based on case law. if one
could demonstrate that these restrictions are exactly those that
are being defied ala clipper, you have a very good case that the
government is trying to *expand* and not merely perpetuate its
so-called wiretapping "authority"

>
>If you are truly interested in the legal questions around notice to
>subjects and Title III wiretaps, see LaFave & Israel, "Criminal Procedure"
>(West). It's got quite a few pages of discussion about Title III. 

thanks for the reference;

>The EFF's failure to work on your little project seems like it might be
>caused by:

excuse me, this is not "my little project". I take no ownership of
it at all. I post to fire off the neurons of others.

>1.	a conclusion that it's not a viable argument, and hence a waste of
>time/effort
>2.	a conclusion that the constitutionality of wiretaps isn't specialized
>enough that they should concentrate on it, they can leave that argument to
>well-funded defense attorneys for Mafia/drug clients, who deal with wiretap
>evidence frequently
>3.	lack of a good case to raise it with

or, 4. the EFF has never seriously considered the possibility of trying to 
challenge Clipper etc. by challenging wiretap law. that I find more probable 
than all of the above-- i.e. the thought hasn't yet entered their collective
brain.

case in point: Bernstein was pursuing his case for a long time without
any help from the EFF. the EFF did *not* help him from the beginning.
he was on his own for a long time. the EFF decided to help after they
recognized the sheer political value of the case. I would suggest that
there haven't been any high-profile wiretap challenges, so that therefore
the EFF hasn't noticed them and piggybacked on them. I would suggest
that the history is that EFF, unlike say the ACLU, doesn't aggressively
*initiate* the case, but rather piggybacks on an existing case (I'm
not criticizing this, any help is better than nothing).

hence my interest in seeing some try to attack the legitimacy of clipper
via the wiretapping route I am focusing on at this nanosecond.

>But I don't know poo about how or
>why EFF decides which issues to work on.

as I suggest above, I would say it is something like serendipity and
piggybacking existing cases. the infamous Steve Jackson Games case
would be another example. no, I'm not an EFF member, I just comment
on them as an outside observer in e.g. the way people talk about the
ACLU relative to civil cases.

in short, this would be something that would *really* scare the spooks:
an attack on the legitimacy of wiretapping as it is now practiced
in some way, some novel attack that is different than any prior 
questioning of wiretapping. if you got an individual and the EFF/ACLU
involved, the publicity alone would be spectacular. notice how
Bernstein doesn't really give much of a snot about Snuffle, it's not
all that significant of an algorithm. it was clearly a *manufactured
case* to challenge the law. same with Junger-- he doesn't really 
give much of a damn about tangible restrictions on his teaching,
they aren't major impediments if they aren't enforced. they 
manufactured their cases specifically to try to get the sword
to the weak spot on the dragon's scales. it'll be a long and
arduous process, and a long shot. but the postive publicity is
absolutely priceless even lacking clear-cut victories. (notice the
cyberspace celebration when a judge merely declared code "speech"
 in the bernstein case.) ask Bernstein how long he has been working on
his case. Junger is a newbie compared to Bernstein.