Re: legality of wiretapping: a "key" distinction

At 02:22 PM 10/7/96 -0700, Vladimir Z. Nuri wrote:

>>and an argument about the constitution:
>>
>>"The constitution says I must be given a choice between disclosing and
>>contempt." 
>>
>>I don't remember seeing any examples of the latter come across the list. As
>>I remember things, the context of my statement above was a discussion of
>>why third-party key escrow is not the same as self-escrow. 
>
>the point is that many cpunks feel that  warrants and wiretaps and
>subpoenas are things to defy. it's a hypocritical double standard
>in which they cloth themselves in the wrapping of the constitution
>or law whenever it is useful to their arguments, and then advocate 
criminality,
>such as via defying legal warrants etc, whenever the case suits them.

Grandly ignoring the 5th amendment, I see?!?  I don't see any contradiction: 
 We can look to the Constitution, simultaneously, for rights for ourselves 
AND for restrictions on government. 

>
>[wiretaps]
>
>>It's rarely quoted here because it is unremarkable; just as the list is not
>>a place for basic crypto education, it is not a place for basic legal
>>education. 
>
>ooops, you fell for Unicorn's muddying misstatement of my question. OBVIOUSLY
>there is lots of case law on wiretaps. what I was trying to point out
>was that I find little discussion of cases here trying to discredit
>wiretap law for various reasons, such as that the wiretapped
>person is not informed. the distinction of the person *not*being*informed*
>of the wiretap is very important as otehrs here agree, and I would
>expect everyone would be familiar with a simple case that gives a 
>decision on it (in much the way many constitutional cases are
>regularly quoted) or that people would advocate wiretap law would
>be challenged on the basis of the lack of such a precedent case.

Now _THAT'S_ a very valid point.  Unicorn totally ignored that issue.  I 
pointed out my expectation that the only reason wiretaps are secret is their 
technical ability to do them while staying secret.

I've occasionally pointed out that if tomorrow, scientists discover some 
sort of teleport system that allows cops to sneak through walls, at the same 
time being invisible, cops and judges will suddenly announce that the 
requirement that people searched need to be informed of that search is, uh, 
no longer applicable.

This is a problem.  No, not the precise hypothetical I imagined above; I 
don't think it's going to be possible as stated for a long time and probably 
never.  The problem, however, is that "the authorities" have respect for the 
rights of the citizens more in the breach than in the observance, and if 
they find what they consider to be a good reason to ignore them, they will 
with little hesitation.


>>(The answer to most of the "how do I find out about 'X'?" questions
>
>you have a lot of good advice, but I ask none of the things you are
>attributing to me. I simply would like to carry on a discussion with
>a civilized lawyer who specializes in the subject, rather than have
>a people tell me why I cannot even do this, and must become a law
>specialized before I can even use the word "wiretap" with any 
>meaningfulness.

It's particularly pointless that some of these lawyers keep saying things 
like, "You don't understand how the law works!" when it is quite obvious 
that in most cases, the people who are complaining DO know enough about how 
the law works to identify when it is being abused.  This is not surprising:  
For example, I can't ice-skate worth beans, but I easily tell the difference 
between a bad and a good ice-skater.  I can't make music, but I can tell the 
difference between bad and good music.  I don't know much about 
architecture, but if I see a building collapse I can see that somebody made 
a mistake.  I don't act, but I can tell the different between a good and bad 
actor.

It is a frequent conceit among "experts" that the only people who should be 
able to criticize them are people who know as much as they do on a 
particular subject.  Black Unicorn is particularly bad in this regard.


>the chief point of my post was to question why the EFF etc. are not
>at all interested in challenging the wiretap "status quo" in spite
>of what many people here believe/advocate-- that wiretapping was
>never legitimate in the first place. this is curious because EFF
>etc. *are* willing to back up the cryptography cases out there,
>ala Bernstein etc.

Probably mostly because they expect that the government is going to be 
completely unwilling to admit that it's wrong.  In fact, of course, that's 
exactly why the government is very much afraid of the advent of good encryption:  
Ubiquitous crypto telephones make the government's use of wiretapping 
irrelevant, totally without regard to what any cop or judge or prosecutor 
says.  Fundamentally, it's a technical fix to a legal mistake.


Jim Bell
jimbell@pacifier.com

(uhm, for the record, despite whatever appearances,
I am not on Jim-Bell-assassin-boy's side in any debate.)

>>the point is that many cpunks feel that  warrants and wiretaps and
>>subpoenas are things to defy. it's a hypocritical double standard
>>in which they cloth themselves in the wrapping of the constitution
>>or law whenever it is useful to their arguments, and then advocate 
>criminality,
>>such as via defying legal warrants etc, whenever the case suits them.
>
>Grandly ignoring the 5th amendment, I see?!?  I don't see any contradiction: 
> We can look to the Constitution, simultaneously, for rights for ourselves 
>AND for restrictions on government. 

all lawyers will tell you that the 5th amendment does not preclude you
"handing over evidence" under a warrant. it's a tricky aspect of law. "handing 
over evidence" makes sense with physical things, but courts/government
are struggling to figure out what it means in the information age.

>It's particularly pointless that some of these lawyers keep saying things 
>like, "You don't understand how the law works!"

my objection to Broiles/Unicorn is that they could simply post a few
cases and a summary of what wiretap law is about, esp. with their
legal background rather than flaming
my testicles off for not doing this myself. I agree with you that
people who shout, "you cannot even be allowed to TALK about such things
unless you go to the library, research at least five days, etc"-- I'm
sure that someone else has done this already, and I'm merely giving
an open invitation to them to discuss what they found. that's the beauty
of cyberspace, when it works right, everyone pitches in. you learn
from people who know more than you do, and they learn when you know
more than they do. no one's the authority or monopoly. in 
dysfunctional places such as this little rats-nest-hell-hole, you
get egotistical people, who perceive you are invading their turf without
beforehand displaying a sufficiently large "qualification", 
shouting at the top of their lungs that we should not
even discuss such a matter until everyone's credentials in the matter
are settled apriori.  (****size wars!!)

>It is a frequent conceit among "experts" that the only people who should be 
>able to criticize them are people who know as much as they do on a 
>particular subject.  Black Unicorn is particularly bad in this regard.

ok assassin boy, I hate to admit it but you have a great point there.
and its a big problem on this list. frankly I believe it has much more
to do with dueling egos than anything else. and the egos always have
been enormously bloated around here. why, it's a great opportunity for
someone to prick the bubbles. one can create quite a stir very easily
in a frothing anarchists-nest, speaking from experience <g>

>Ubiquitous crypto telephones make the government's use of wiretapping 
>irrelevant, totally without regard to what any cop or judge or prosecutor 
>says.  Fundamentally, it's a technical fix to a legal mistake.

another good example of how  a cpunk extremist ignores law when it
is not in his favor. law will always say that you have to hand
over evidence relevant to a case when compelled by warrant. whether
you can evade such a thing is irrelevant from the legal standpoint. and
what's orwellian about that?

there are two positions:

1. whatever is possible technically goes. if something cannot be
enforced, it should not be illegal. this position is fundamentally
anti-law. whoever uses it cannot legitimately wrap themselves in
constitution protections, because the constitution is the epitome
of law. the govt-assassins would essentially hold this side.

2. people in an orderly society follow laws not because they are compelled
to, but because they recognize that order is maintained through
compliance, and chaos ensues from noncompliance. they change bad
laws using mechanisms built-in within the system to do so.


the point is, either the law of the land is legitimate or not. if it is not
legitimate, you are advocating anarchy and have no business 
talking about the constitition etc.  if the law is legitimate, you
follow it regardless of whether enforcement is possible, but may work
within the system to change it, e.g. court challenges such as those
I've been advocating.