From: TruthMonger <tm@dev.null>
Date: Fri, 18 Jul 1997 16:39:43 +0800
To: cypherpunks@toad.com
Subject: Re: court order required for keys?
Message-ID: <199707180824.CAA17083@wombat.sk.sympatico.ca>
MIME-Version: 1.0
Content-Type: text/plain



Roger Schlafly wrote: 
> Posted online news accounts of the McCain-Kerrey bill have implied
> that the a court order is required under the bill to get keys. 
>     [AP, 07/09/1997]
>     As with wiretaps, authorities would have to obtain court orders to make
>     the keys available for law enforcement.     ^^^^^^^^^^^^^^^^^^^
>     [Wired, 11.Jul.97]
>     Law enforcement could then access that copy of your key
>     through a court order.
>     ^^^^^^^^^^^^^^^^^^^^^
> 
> I find this distressing, because I have read the bill, and a court order
> is most emphatically NOT required.  Only a form specified by J. Reno.

  Most people don't realize that many of the so-called protections that
are in place to guard our constitutional rights and our privacy only 
apply to _use_ of the material in an _official_ proceeding, such as a
trial or hearing.
  Government, private agencies and corporations daily exchange all
manner
of supposedly private information, often using court orders only to
_officially_ get portions of what they already had. It is no accident
that LEA's often get court orders asking only for access to certain
incriminating information (since they've already done the "fishing").

This is a tricky point in the bill, but notice that:
> (1) Court orders are not required for wiretaps in the US.  While it may
> be true that court orders are used most of the time when wiretap evidence
> is used in a criminal trial, there are a number of exceptions.

  Also, many of the wiretaps have already been in place when the
court orders are applied for. "Redating" of wiretap records is a
common and sophisticated part of LEA practice. NSA has a database
that is used to cull out wiretap references which are out of sync
with the purported time-stamp on records. It lists all worldwide
social and religious time-sequence indentifiers such as Easter, 
Hannuka, the running of the bulls, sports contests and playoffs,
etc. 

> (2) There is no restriction in the bill to getting keys to decipher
> communications covered by the wiretap 
>  Under S.909,
> if the cops can get access to the data, then they can get the keys
> without any court order.

  Which they no doubt will do and apply for the court order after they
have found what they want. This will be even more effective than their
voice-wiretap methods have been because their will be no need to redate
the information they claim as being found after getting the court order
since files, unlike voices, linger.

> (4) In S.909, all of the requirements on law enforcement officials
> can be lifted by executive order.

  Which means it can be done _retroactively_ with a nod, a wink, and
a few simple strokes of a pen.

  S.909 quite simply butt-fucks the Constitution and the citizenry.
The shameless criminals on Capitol Hill of Manure no longer even
seriously pretend to be in the least concerned with Constitutional
issues. They think (and may be right) that they only have to chant
the "National Security" mantra a couple of times to absolve all of
their sins against the Constitution.

TruthMonger