Re: reno_key_escrow.statement (fwd)

Trotter writes:

> Thanks to Mike Godwin for forwarding the announcement about the
> Clipper chip stuff.  I am not a Constitutional law person or
> criminal preceedure person, but if I understand this proposal
> correctly, it does not require a member of the judiciary to be
> involved.

Not at the key-escrow phase, no. But you have to have a valid search
warrant or authorization order in hand before you can go to the escrow
agencies and request the partial keys.

Here's the relevant language:

> > ATTORNEY GENERAL MAKES KEY ESCROW ENCRYPTION ANNOUNCEMENTS
> >
> > When an authorized government agency encounters suspected key-
> > escrow encryption, a written request will have to be submitted to
> > the two escrow agents. The request will, among other things, have
> > to identify the responsible agency and the individuals involved;
> > certify that the agency is involved in a lawfully authorized
                                           ^^^^^^^^^^^^^^^^^^^^^
> > wiretap; specify the wiretap's source of authorization and its
                                   ^^^^^^^^^^^^^^^^^^^^^^^
> > duration; and specify the serial number of the key-escrow
> > encryption chip being used. In every case, an attorney involved in
> > the investigation will have to provide the escrow agents assurance
> > that a validly authorized wiretap is being conducted.

The reason that Reno doesn't just say "a court-ordered wiretap" is
that there are some emergency circumstances under which wiretap
authorization can be gotten in advance of approval by a neutral
magistrate. Both the Wiretap Act and the Foreign Intelligence Surveillance
Act make provisions for such emergencies. 

Eventually, such emergency wiretaps do have to be reviewed by a
magistrate, however. In the Wiretap Act, and, I believe, in FISA, 
the time limit is 48 hours.


--Mike

Mike Godwin writes, about Clipper's key-escrow:

>  But you have to have a valid search
>  warrant or authorization order in hand before you can go to the escrow
>  agencies and request the partial keys.
>
>  Here's the relevant language:

>   > > ATTORNEY GENERAL MAKES KEY ESCROW ENCRYPTION ANNOUNCEMENTS
>   > >
>   > > When an authorized government agency encounters suspected key-
>   > > escrow encryption, a written request will have to be submitted to
>   > > the two escrow agents. The request will, among other things, have
>   > > to identify the responsible agency and the individuals involved;
>   > > certify that the agency is involved in a lawfully authorized
>					      ^^^^^^^^^^^^^^^^^^^^^
>   > > wiretap; specify the wiretap's source of authorization and its
>				      ^^^^^^^^^^^^^^^^^^^^^^^
>   > > duration; and specify the serial number of the key-escrow
>   > > encryption chip being used. In every case, an attorney involved in
>   > > the investigation will have to provide the escrow agents assurance
>   > > that a validly authorized wiretap is being conducted.

But the word "warrant" appears nowhere in there.  The agencies requesting
the keys aren't required to present a warrant; they're only required to
promise that they're lawfully authorized.  And if they lie the evidence
is still admissible in court and they suffer no penalty.  And what does
"lawfully authorized" really mean?  Depending on what legislation
Congress passes, it could mean no more than "my supervisor approved it".

-----------------------------------------------------------------------------
Kevin S. Van Horn     | It is the means that determine the ends.
kevin@bert.cs.byu.edu |

Kevin writes:

> But the word "warrant" appears nowhere in there.  The agencies requesting
> the keys aren't required to present a warrant; they're only required to
> promise that they're lawfully authorized.

You're misunderstanding the language. Strictly speaking, law-enforcement
agents who seek wiretaps receive "authorization orders," not warrants.
So the word "authorized" is perfectly appropriate. 


--Mike