From: Ray Arachelian <sunder@brainlink.com>
Date: Wed, 11 Jun 1997 04:02:36 +0800
To: cypherpunks <cypherpunks@toad.com
Subject: SPECIAL ISSUE Surveillance List Forum Vol 2 Issue#133 June  10,1997 (fwd)
Message-ID: <Pine.SUN.3.96.970610153852.9093I-100000@beast.brainlink.com>
MIME-Version: 1.0
Content-Type: text/plain



Vewy vewy intwestwing stuff....  (forwarded from the security list.)  Note
the "major threat to LEA's" in particular...

=====================================Kaos=Keraunos=Kybernetos==============
.+.^.+.|  Ray Arachelian    | "Boy meets beer.  Boy drinks Beer,     |./|\.
..\|/..|sunder@sundernet.com|        Boy gets another beer!"         |/\|/\
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../|\..| "A toast to Odin,  | For with those which eternal lie, with |.\|/.
.+.v.+.|God of screwdrivers"| strange aeons, even death may die.     |.....
======================== http://www.sundernet.com =========================

---------- Forwarded message ----------
Date: Tue, 10 Jun 1997 10:16:51 -0400
From: SpyKing <SpyKing@thecodex.com>
Subject: SPECIAL ISSUE Surveillance List Forum Vol 2 Issue#133 June  10,1997

******************************************************************************
Vol.Two Issue #133           The Surveillance List            June 10,1997        
                        Over 2100+ Members Worldwide
                     Representing 46 different countries
                List Chat at: http://www.thecodex.com/chat.html
                             ***SPECIAL ISSUE***
******************************************************************************
IN THIS ISSUE...
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01) Important Issue Concerning ALL in the Surveillance Business... 
  
 
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DON'T BE A LURKER.... GET INVOLVED... YOU ARE A MEMBER... MAKE THE MOST OF IT
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1)From: SpyKing@thecodex.com
Subject: Important Issue Concerning ALL in the Surveillance Business...

I received this post from Gilbert Walz and thought it of immense importance to the list. He's asked me to post and I am complying... Read this carefully as it could affect all... If you agree that something needs to be done I urge you to contact you congressman and let them know about this situation...

>>>>
From: GilbertWa@aol.com
Date: Sun, 18 May 1997 01:56:48 -0400 (EDT)
To: SpyKing@thecodex.com
Subject: US CUSTOMS BUST

Greetings,
My partner Jude Daggett was recently arrested by US Customs in a sting set up
by Bill Fischer of E.C.I. Calgary Canada,for allegedly selling a chip that
enabled a panasonic cell phone to receive 800-900 mhz.Mr. Fischer  was
apparently set up as well by Cellular Tecnology , a company that sell's the
CT-1000 a Hand Held cell test piece.
There is much more to the story,including an upcoming trial in San Jose Ca,
for violations of section 2512, I am the defendant in this case.
If you are interested in more detail please page me@ 415-979-7353.

Regards,

Gilbert Walz

<<<<

From: GilbertWa@aol.com
Subject: Section 2512

FYI

MAJOR THREAT TO STATE AND LOCAL LAW ENFORCEMENT CAPABILITIES

State and local law enforcement bodies have begun to find it difficult to procure the latest in Title III equipment, i.e. equipment "...primarily useful for the surreptitious interception of ... communication".  Unless action is taken at the highest levels of the federal government, there is no question that serious harm will be done to the abilities of state and local law enforcement to properly perform technical surveillance.

This is an extremely serious matter, and I urge you to take the time to
study this information.  Law enforcement's ability to properly perform its
duties faces a serious and a real threat, and correcting the situation will
not be easy, but it is something that MUST be done.

We're in this sorry state for two real reasons and one possible reason, viz:

Real Reason #1.  The federal law that deals with monitoring that which has
been transmitted by radio is irrational, poorly written, unthinkably
stupid, incomplete, technically impossible to enforce, vague where it
should be specific, specific where it covers unenforceable prohibitions,
and primarily of value to vendors of cordless and cellular telephones
(because they can lie to their potential customers telling them: "nobody
can listen to you; it's against the law).

Real Reason #2.  Some federal government entities have chosen to reinterpret elements of a law enacted almost thirty years ago (and amended many times since then).

Possible Reason.  There is great suspicion that some privileged companies
are steering some of the federal government's minions toward small
companies in order to remove possible competition from the marketplace --
in other words it is possible that the law is being selectively enforced
for the benefit of some firms.  Professionals who know their way around in
this arena are aware of some targeting that had been orchestrated by
entities that, although they deal in a big way with Title III equipment,
have remained unaffected by the federal government elements that have
suddenly developed real zeal to punish those who they say sell Title III
equipment.

Background.  During the past TWENTY-NINE YEARS (since passage of Public Law
90-351, "The Safe Streets Act of 1968"), law enforcement at all levels in
this country has benefited because of a reasonable interpretation of the
elements of that law.  That has now all changed.  To allow you to
understand the situation we must first cover the specifics of the law, and
the way it has been interpreted over the years.

First, the prohibitions.  The law proscribes the use, possession and
even advertising of equipment "knowing or having reason to know that the
design of such device renders it primarily useful for the surreptitious
interception of ... communication".  Obviously there are categories of
people who are exempted from these prohibitions - such as the very law
enforcement people who would use it in investigations.  However, one of
those exemptions is now being reinterpreted.

I refer specifically to the interpretation of the exception relating to
"...an officer, agent, or employee of, or a person under contract with, the
United States, a State, or a political subdivision thereof..."  For almost
thirty years that phrase has been interpreted that honest businessmen
(manufacturers or dealers) who sold Title III equipment only to law
enforcement agencies were "agents under contract to...".  Small business
entrepreneurs and their dealers have, since passage of the PL 90-351,
operated under the belief that, if their customers were federal, state or
local law enforcement organizations, they were operating legally when they
designed, built and sold such equipment (or marketed it as agents of the
builder). 

Never having had any notice by any government body that a specific item
could be considered "Title III", sellers felt no compunction to refrain
from advertising and no concern about selling to non-law enforcement (except for obvious Title III items such as body wires).  This dogma has been reinforced and solidified by almost thirty years of practice.
   
Before covering the 1996/7 reinterpretation of this law, let's review
some recent events.

Enforcement History.  In 1991 or 1992 several businesses received a
certified letter from the FCC that began "It has come to our attention that
you are marketing..." and went on to accuse all of us of various felonies.
My written request to be told the specific product and the specific accuser
is to this day still unanswered.  However, one man, whose letter was
ignored and whose FOIA inquiry was ignored, finally inquired through his
congressman.  He was then informed that his FOIA action was sent to the
wrong address (!), and that the FCC accusations were based on "anonymous
telephone tips".  Yeah, Right.  (Those of us who are knowledgeable of the
players have a good idea of how those "anonymous" tips were received; we
remember seeing the guy who was siccing his FCC toady on various exhibitors
at more than one trade show.  Ah well.)
   
Then about two years ago a bunch of stores with "spy" in their names
were raided by the Customs Department for importing and selling forbidden
radio transmitting equipment.  (Personal comment: Good riddance; they were
mostly rip-off artists preying on people who wanted to spy on others.)
   
However, the serious reinterpretation that is tying up resources started
last year.  In 1996 and 1997 there has been a lot of activity based on 1)
lawyers pretending to be all-knowing technical experts and 2) a
reinterpretation of the exception clause quoted above. 

Current Status.  To the best of my knowledge, the first activity in this
"reinterpreting" arena was the indictment of Gilbert Walz and Jude Daggett
by US Attorney Michael J. Yamaguchi in the US District Court of Northern
California.  The indictment accuses them of selling devices "whose [sic]
design renders them primarily useful for the purpose of the surreptitious
interception of wire, oral and electronic communications".  (The paper I
have in front of me is called "SUPERSEDING INDICTMENT" and is dated May 2,
1996.)

There is no reference in this indictment - or in any of the other
government papers I have - to the expert on whose opinion these indictments
are based.  Therefore, I have the terrible suspicion that Michael J.
Yamaguchi took it upon himself to make the kind of determination that can
only be made by a technical expert with education and experience in the field.
   
Both Walz and Daggett have been "out on bail" until the very recent
past.  Then, within the past few months,   it appears that various players
in this arena have been pressured to "set up" those gentlemen.

Walz took a telephone order for a piece of equipment, ordered it shipped
from Canada, and was arrested when it arrived in the hands of the man who
ordered it.  He never saw it, never touched it, never got paid one cent,
but was arrested and jailed for about one month before bail was set at one
hundred thousand dollars.  (By the way the man who ordered the equipment
and who received it, is still free as a bird.)  

Daggett also was arrested (after also apparently being set up) and
jailed, but released after a week or two on personal recognizance.
   
I think it is important to note that these men have been selling these
items for years, and had asked one government official after another if
there was any question as to their legality.  The only answers they
received were non-committal.

Deleterious Results from These Actions.  These (and possibly other) actions
by various entities at the federal level have caused the "unarrested"
members of this community to pull in their horns.  They will no longer even
admit to possessing equipment that might be capriciously classified as
Title III.
   
The net result, unless some sensible order is created from this miasmic
mess, will be a set back for state and local LE bodies of five to ten years
in procurement of Title III equipment.  I say that because some of the
federal people involved have stated that "only people under contract to the
federal government" are covered by the exception noted above.  Even if that
is softened to the state and local governments as specified in the law, any
law enforcement agency that needs Title III equipment will  have to totally
technically specify its needs in a request for proposal, distribute the RFP
to a list (Where does it come from?) of competent firms, take proposals,
evaluate proposals, award contracts, evaluate products delivered; and
finally, years after the need was recognized, receive the product.

MY PERSONAL INVOLVEMENT

Last month, while Jude Daggett was locked up in jail, his partner
Gilbert Walz called and asked for my help in getting him out.  Jude called
also, and I agreed to do what I could.  The letter I sent to Jude's lawyer
follows.   

Dear *******,

I am writing this on behalf of Jude Daggett, an honest man and a good
friend of more than ten years.  However, the opinions I express are not
generated by that friendship; they are based on my education and experience
and are totally consistent with my stated positions, writings and testimony
over the years.  Let me introduce myself and briefly list my qualifications
to comment on this case and the law under which it was brought.  

I am an electrical engineer with almost fifty years of professional
experience in communications and electronics.  (A short resume follows.)  I
have been called as an expert witness in federal and state courts in civil
and criminal cases relating to electronic communication, eavesdropping,
etc.   The Office of Technology Assessment of the United States Congress
contracted with me to study and report on the vulnerability of our
telephone system to secret monitoring.  I believe I am the only engineer
ever to provide an expert opinion in federal court on the meaning of
"...knowing or having reason to know the design of which renders it
primarily useful for the surreptitious interception of ... communications"
as it relates to a specific item of electronic equipment. 

The law that applies originated as the Safe Streets Act of 1968, PL
90-351.  The specifics relating to "primarily useful for" were printed
under the heading "Title III" in that law, and that equipment has come to
be known as Title III equipment by those in this field.  90-351 and its
later versions were attempts to codify questions relating to monitoring the
communications of others, but all are flawed in many, many ways - primarily
due to the influence of lobbyists for the cellular telephone industry and
cordless telephone manufacturers.  They wanted to be able to tell their
customers "No one can listen; it's against the law."  

In truth, despite any laws that can be written, that which has been
transmitted by radio, can and will, be listened to.  That is as immutable
as water running down hill.  Common, ordinary and essential electronic
parts and systems, useful for many other purposes, can be used to monitor
radio transmissions; and no series of laws or regulations can change that
verity.  There will always be people who will listen, regardless of any
laws on the books or lies told to potential customers.

People who choose to broadcast their thoughts by radio should not be lied
to; they should be cautioned that every word can be heard by others.  In
fact, the United States Supreme Court, in an eminently fair and reasonable
ruling, said that the man who had been imprisoned based on material his
neighbors heard him say over his cordless phone had "no reasonable
expectation of privacy".   The court ruled that no one invaded his privacy,
but, rather, that the signal received by his neighbors' cordless phone had
been transmitted by his deliberate act, and the content of his messages was
in no way privileged.

Radio transmissions are radio transmissions, and although cellular
transmissions are on different frequencies and handled differently than
cordless, they are still transmissions that can be received by anyone.
I'll opine that, when the law regarding cellular is tested at the supreme
court level, the ruling on the validity of the law will be the same as it
was in the cordless phone case.
	
So, I present the idea above as something that could be called a "global
defense" of Mr. Daggett and anyone else caught in the net that has recently
been cast.  However, let's consider the specifics of Mr. Daggett's case.
	
With regard to the specific case at hand I believe the most important
consideration is the legislative history of the federal law in question.
Although I do not have a copy in front of me as I write this, the essence
of the legislative history that applies is:  "...Because this is such a
specialized field, it's obvious that the services of an expert will be
required in considering whether the design of a device renders it primarily
useful for surreptitious interception of communication."  

I have read the documentation on this case, and I am appalled at the fact
that technical laymen with no education or experience in this specialized
field have bluntly stated as a fact that the devices under consideration
are primarily useful for surreptitious interception of communication.  In
my opinion such statements are a travesty.  As a man with an education and
a lifetime of experience in the field, if I were asked that question, my
answer would be that I would have to:

have possession of each device for some time so I could operate it and compare it with other, technical equipment with similar capabilities, 
	   
evaluate the cost vs. benefit of each possible equipment for the many
possible uses, (to explain, let's consider the monitoring equipment that
could be used on fax transmissions: There is a two-channel fax monitoring
system from Denmark that costs $60,000 and has the capability of
recognizing the formats used by all fax manufacturers.  Also, it is
possible to use a $30 tape recorder and $150 fax machine to reproduce faxes
transmitted by a machine of the same make.   With no other information to
influence my opinion, I would conclude that the person trying to collect
information illegally on someone else would opt for the inexpensive
approach; and that the company that needs to monitor communication between
the headquarters and divisions located in countries all over the world
would use the expensive system so as to be sure it can decipher all
messages from all machines.)

discuss uses with others who have had experience with the equipment for various functions; and finally, spend time to allow my brain to reach a logical conclusion.

>From my point of view it is unconscionable to have a man jailed based on
the unsupported technical conclusions of laymen - laymen with no education
or experience in even basic design of electronic communication equipment
much less the kind of specialized electronic communication equipment
referred to in this case.
	
Based on what I have learned about this case, I believe this was a setup,
designed to result in the arrest of Mr. Daggett.  There was absolutely no
intent or effort on his part to violate any law; in fact, material I have
in hand indicates that he and his partner had frequently asked law
enforcement people and even a US Attorney to tell them if any of their
equipment fell into the Title III category (primarily useful for...), and
were always answered ambiguously.  Mr. Daggett was the target, and men who
were being pressured to do so by law enforcement authorities arranged to
meet him in a place that had been prewired so as to videotape the whole
activity while they pressured him into assembling the equipment and turning
it on - while not a word was spoken about any illegal use of the equipment.
	
Perfectly legal equipment can be used illegally.  An ordinary hammer can
be used to kill someone, but that doesn't mean it is primarily useful for
killing a person.  The bayonet I was issued in WWII, on the other hand, is
designed for just that purpose and no other.  In this case, serious
consideration should be given to the "primarily useful for" clause.  Is
someone interested in illegally eavesdropping on cellular conversations
going to buy  a $100 scanner or an instrument designed to fight cellular
toll fraud that costs thousands of dollars?

I have no idea whether the following thoughts are material, but I present
them because, as a legal layman, I regularly wonder about the uneven
application of some criminal laws.  For instance, while Jude Daggett is in
jail for possibly having sold a Title III piece of equipment:
	  
the Martins (who said they had monitored and recorded Newt's conference
call that Rep Boehner was on with his cellular) were fined $500 each for
the deliberate illegal recording and distribution of a cellular phone
conversation.  Where's the justice?
	   
Westinghouse (and a raft of other companies) advertise Title III
equipment regularly and continuously.  In that such advertising is also
proscribed by 18 USC 2512, I wonder how they get away with it.  Does our
federal law enforcement shy away from the bigger companies because they
have bigger budgets to defend themselves with?  Where's the justice?
	
Finally, let me go back to my original comments about this law.  It is so
ambiguous as to be farcical.  Examples:
	   
It uses the word "intercept" incorrectly so it has to contain a special
definition of it.  
	   
It refers to "audio subcarrier" a complete nonsensical combination of
words - audio is sound, a longitudinal wave and subcarrier must be RF, a
transverse wave.  
	   
It could even be interpreted in some circumstances to mean it is a
federal crime to "intentionally" listen to Muzak while on an elevator or on
hold on the telephone.

POST SCRIPT

Additional Considerations.  Since writing the letter above, I have
continued thinking about that silly law.  Sure, the legislators will tell
you they passed it to protect our privacy.  That's hogwash.  If they were
honest, they would have listened to Bob Grove when he was invited to
testify.  Instead they pilloried him, accusing him of all kinds of nasty
things.
   
Had they listened to him, or to anyone with education and experience in
this field, they would have heard that the law is unenforceable.  That
which has been broadcast  by radio will be monitored by parties other than
the intended receiver.  Unless encryption or some modern modulation
techniques are used, every broadcast can be monitored - despite the lies of
the sellers.

Two more possible lines for the defendants to take:

#1.  I am an expert and allowed, therefor, to offer an opinion in court
testimony.  However, when I have offered an opinion, I have buttressed it
with arguments and even demonstrations.  I doubt the lawyers who have
expressed opinions as facts have done, or even can do, the same.  There is
nothing in their writings other than unsupported conclusions.

2.  I think a careful evaluation of the words in the law and the
legislative history might lead to the conclusion that the " communication"
referred to by the law writers is solely communication between humans.  If
that's so, the operation of the specific item should be carefully examined.

For instance, the cellular monitoring systems print out tons of
communication between the CMTs and the MTSOs (cellular mobile telephones
and mobile telephone switching offices).  Line after line on the printout
specifies the status of all active CMTs in its area, and the details of
what number called what number, etc. etc.  If these things primarily
monitor machine communications, can they be called "primarily useful for
surreptitious interception of {human} communications?

TWO POSSIBLE SOLUTIONS

#1.  The congress could pass a new law - one based on inputs from people
who know what they're talking about and have the interests of our citizens
in mind.  (The elements of this law that cover monitoring [the law calls it
"intercepting"] of radio broadcasts is not necessary.  47 USC 705 has
served us well for many years, and makes sense.)  

#2.  As long as the stupid law stays on the books, the federal government
should establish a qualified, non-government body of experts to rule on
what is and what is not a Title III device or system. This would allow
manufacturers and dealers to know who they can sell to.

James A. Ross


+++Moderator's Note+++

I agree with Ross. The law IS unclear and can result in select prosecution of anyone who manufactures Title III equipment OR ANY TYPE of communication equipment that could POSSIBLY be used for interception...

Several years ago I asked a personal friend who was the BOSS of a "three Letter agency" (Federal) in New York City for clarification of TITLE III because I had developed a new surveillance device and wanted to manufacture and sell...

My friend told me (after checking with Justice Department Legal Counsel) that there was "no license" which would "hold harmless" a "surveillance device" manufacturer or distributor. That they operated at the discretion of the government and could be indicted at any time... He advised me (as a friend) against developing the new device since I could be indicted for simply offering it for sale to "bona fide" law enforcement agencies...

The fact of the matter is "certain" companies that are on the "in" thrive while circulating "false" data about competition and "dropping dimes" to the feds to cause competitors "problems"...

Ma Bell should also be indicted as well as MANY other companies for "manufacturing" devices which allow the "interception" of communications...

See how stupid this gets?...

This type of case affects us ALL... I hope the list will support Daggett and Walz and let there Congressman know about this farce... 

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