Notes from the field

Mike,
 
I recently became aware of an article that you wrote entitled,
"Notes on Cryptography, Diigital Telephony, and the Bill of
Rights", which was included in a recent CuD (5.32, Sun May 2,
1993). It appeared to be a message you had originally posted to
the austin.eff newsgroup.
 
I'm not so sure that it ever made it over to cypherpunks, so I'm
quoting part of that message here for clarity.
 
You wrote -
 
     "B.  The Fourth Amendment reads: "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized."
      C.  Conspicuously missing from the language of this amendment is
any guarantee that the government, with properly obtained warrant in
hand, will be _successful_ in finding the right place to be searched or
persons or things to be seized. What the Fourth Amendment is about is
_obtaining warrants_--similarly, what the wiretap statutes are about
is _obtaining authorization_ for wiretaps and other interceptions.
Neither the Fourth Amendment nor Title III nor the other protections
of the ECPA constitute an law-enforcement _entitlement_ for law
enforcement.
      D.  It follows, then, that if digital telephony or widespread
encryption were to create new burdens for law enforcement, this would
not, as some law-enforcement representatives have argued, constitute an
"effective repeal" of Title III. What it would constitute is a change
in the environment in which law enforcement, along with the rest of us,
has to work. Technology often creates changes in our social environment
--some, such as the original innovation of the wiretap, may aid law
enforcement, while others, such as powerful public-key cryptography,
pose the risk of inhibiting law enforcement. Historically, law
enforcement has responded to technological change by adapting.
(Indeed, the original wiretaps were an adaptation to the widespread
use of the telephone.) Does it make sense for law enforcement suddenly
to be able to require that the rest of society adapt to its perceived
needs?"
 
(End Quote)
 
Maybe it's just that time of the day or perhaps I just need for you
to clarify this a bit more -- How does the ECPA offer protection, as
it is cuurrently written, against warranted search and seizure with
regards to technologically advanced systems (such as would crypto be
considered)?
 
 
Again, you fyrther wrote -
 
     "I.  As my notes here suggest, these initiatives may be, in their
essence, inconsistent with Constitutional guarantees of expression,
association, and privacy."
 
(End Quote)
 
You are saying, in effect, that it is your opinion that these
initiatives may be unconstitutional? If so, what course of action
can be suggested, short of a class action lawsuit against an LEA
after-the-fact?
 
By the way, the article was excellent and since I have not seen it
posted here in cypherpunks, I'd like your permission to repost it.
 
Cheers.
 

Paul Ferguson                  |  Uncle Sam wants to read
Network Integrator             |       your e-mail...
Centreville, Virginia USA      | Just say "NO" to the Clipper
fergp@sytex.com                |          Chip...
-------------------------------+------------------------------
         I love my country, but I fear it's government.

Paul Ferguson writes:

> I recently became aware of an article that you wrote entitled,
> "Notes on Cryptography, Diigital Telephony, and the Bill of
> Rights", which was included in a recent CuD (5.32, Sun May 2,
> 1993). It appeared to be a message you had originally posted to
> the austin.eff newsgroup.
  
I don't recall posting it to that newsgroup, but it doesn't surprise me
that it appeared there. I have strong connections with Austin and with
EFF-Austin.

> Maybe it's just that time of the day or perhaps I just need for you
> to clarify this a bit more -- How does the ECPA offer protection, as
> it is cuurrently written, against warranted search and seizure with
> regards to technologically advanced systems (such as would crypto be
> considered)?

ECPA doesn't mention encryption. It does, however, penalize unauthorized
disclosure of communications. Whether "disclosure" occurs when a
communication is seized, or when it's decrypted, is an open question.

>      "I.  As my notes here suggest, these initiatives may be, in their
> essence, inconsistent with Constitutional guarantees of expression,
> association, and privacy."
>  
> (End Quote)
>  
> You are saying, in effect, that it is your opinion that these
> initiatives may be unconstitutional?

Yes.

> If so, what course of action
> can be suggested, short of a class action lawsuit against an LEA
> after-the-fact?
  
Lawsuits are almost inherently reactive. The best thing is to lobby
Congress for guarantees of the right to encrypt. State legislatures may
also be a useful target.

> By the way, the article was excellent and since I have not seen it
> posted here in cypherpunks, I'd like your permission to repost it.

You have permission to repost it anywhere. I believe it appeared already
in cypherpunks, though. Maybe some people want to see it again.


--Mike