From: "Vladimir Z. Nuri" <vznuri@netcom.com>
Date: Sat, 5 Oct 1996 15:41:53 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: legality of wiretapping: a "key" distinction
In-Reply-To: <199610042343.QAA20758@mail.pacifier.com>
Message-ID: <199610050110.SAA01860@netcom7.netcom.com>
MIME-Version: 1.0
Content-Type: text/plain



>>
>>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.
>
>I've been saying this for years!

sorry, I must have been distracted with the references
to assassinating politicians. (hee, hee)  (BTW, why don't you
get an AP web site together if you are so hot on the idea?
collect all your writing on the subject and the objections
of your enemies. do you believe in it or not? put your web pages
where your mouth is!!)

>It didn't have to be this way.  The SC might simply have said that wiretap 
>warrants must follow the same rules all other warrants followed, meaning 
>that the target is informed of the tap when it is placed.  Sure, the police 
>would howl, complaining that they'll never hear anything "useful" if the 
>target is informed, but then again, the Constitution cannot guarantee that 
>any particular search would achieve its intended results.

but then again, if "we the people" didn't challenge a usurpation of
our rights when it happened, something's wrong here. hence my
opinion that wiretapping should be challenged in court.

>Are police entitled to use thumbscrews if simply asking a question won't get 
>the "right" answer"?  I don't think so.  

very poor analogy. a rhetorical loser imho characterisitic of 
painting the issue in terms of extremism.  wiretapping doesn't involve 
any physical pain to the surveilled. also it is barely analogous
to "search and seizure" in that there is nothing physical being
seized. (just playing the devil's advocate here)

>One thing that was very important to those who wrote the US Constitution was 
>the sanctity of contracts.

well, if the person entered in a contract with their phone company
to provide protected communications, maybe you'd have a case there.
in fact such a thing is not such a bad idea. perhaps some would be
willing to pay a premium for phone companies that reject wiretaps
and the whole thing could be solved ala capitalism. perhaps as a
"thousand phone companies bloom" over the next few years this 
will become a reality, assassin-boy.

>As I understand it, there is a principle in law that all affected parties to 
>a dispute must be included in a proceeding. (To ensure that each can protect 
>his own rights.)  Obviously, targets of wiretaps have not been informed, and 
>thus can't possibly have been included. 

on the other hand, there are clear laws that say you can't withhold
evidence. these and the "right not to incriminate" are intertwined.

>While I'm sure that I will be corrected if this is wrong, somehow I doubt 
>whether there has EVER been a "before-the-fact", full challenge of a wiretap 
>order _including_ representation for the target of the wiretap.  Further, I 
>also doubt whether there is frequently ANY SORT of challenge to a wiretap  
>by a telephone company, even when the target was not informed.  Quite 
>simply, the telephone company does not consider itself to be in the business 
>of protecting the rights of its customers!  And without real challenges, 
>there can be no presumed validity to such warrants.

no, you have it backwards; without real challenges, there 
is no validity to anyone trying to defeat the status quo.

[bernstein, etc]
>Since it has always been legal to use encryption (in the US), they're really 
>not "challenging the cryptographic status quo."

no, ITAR has been around a long time and they are challenging it. you're
mixing up the issue.

>I don't know about you, but somehow I'm past the idea that it's possible to 
>reliably get unbiased justice in court.  Know what I mean?

ah yes, we revert to the basic cypherpunk nihilist position oft repeated
by lucky green, tcmay etc-- "essentially, we're screwed"

[searches]
>Well, they don't technically need the "cooperation," but they are still 
>required to inform the target.  For example, if they get a search warrant 
>for a house that happens to be empty when they show up, they are obligated 
>to leave notice of the search and lists of what was taken.  Apparently they 
>need to do this EVEN IF they would have been able to get into the house 
>surreptitiously without leaving any trace.  

interesting and very significant point, one that I was not aware of.
more good legal arguments for challenging "secret wiretaps".

more and more I think cpunks could win on this issue by asserting
that the government doesn't have a right to "*secret* wiretaps" of
the kind they are pushing and ramming down via CALEA. if we got
a court to agree that secret wiretaps are illegitimate, that
leaves the government only with "announced" ones, something
that cpunks find permits an acceptable level of monkeywrenching.
i.e. start making the distinction between the way wiretaps are
secret and the suspect is not ever informed of the wiretapping,
contrary to physical search-and-seizure procedures.