Re: legality of wiretapping: a "key" distinction

>no, all I am asking for is lawyers who are familiar with wiretap law
>to make a quick case against it based on a commonly-known precedent
>within their field. if you don't want to answer, don't post.

This sounds like a very reasonable proposal. But please don't take a lack
of response to your speculation as an endorsement of your idea, or a
suggestion that it's got even the teeniest shred of merit. I understood you
to be suggesting that because nobody's shown to your satisfaction that it's
meritless, you've somehow stumbled across something important. 

>I will write on anything I damn well please and research it poorly or
>thoroughly as I like, and whisper questions to any lawyers out there who care
>to talk about the subject to an interested layman.

This response illustrates precisely why Uni was reasonable in declining to
give you references. If you're not willing to look up your own crackpot
ideas, you certainly shouldn't imagine that someone else is. (But here's a
hint - if you read the statutes, you might discover that some notification
to the target of a wiretap is required, although not prior to installation.)

>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.

You can no more meaningfully discuss law without learning about it than you
can discuss cryptography or biology or philosophy or any other area of
human scholarship and knowledge.

I think it would be a positive change were the law reworked so that it was
more accessible to lay people, and so that the practice of law were not
such a specialized field. But please note that I talk about that as a
*change*, that is to say, different from how it is today.

You can, if you want, try to work on similar questions in parallel with
established institutions - probably all fields have a group of rogue
scholars or dissidents who believe nonstandard things, adopt nonstandard
methodologies, etc. Sometimes they turn out to be right, sometimes not.
This dynamic exists with law - e.g., what I'd call "Militia Law" (I think
they call it "Common Law" but I'm not sure). Jim Bell seems to be working
on a similar track - starting with original documents and deriving his own
interpretations, rules for statutory construction, and so forth. Perhaps
history will smile on Jim or the militia/common-law folks. Perhaps not.

But crossover is not possible (as should be clear from the past few days'
discussions). Arguments from one school of thought are not useful in the
other because the premises are different, and sometimes contradictory. I
think that it's interesting and good that people are working on their own
theories of law apart from the traditional institutional ones. But I think
it's sad when they try to use their theories (which I think are best
understood as the laws of a foreign, albeit imaginary, nation) in
contemporary state & federal courts. See 
<http://www-leland.stanford.edu/~jgadams/taxcases.html> for a big list of
cases where people with their own versions of the law got spanked in
traditional courtrooms. I think it's a shame when people excited about
their own legal theories get innocent third parties roped into these
peculiar scams. (Then again, there's the argument that this is evolution in
action.)

So that's a long way of saying "plonk." I don't think it's productive for
me to try to keep track of multiple versions of the constitution; and I've
settled on the one that's used today in court as the one I'm going to pay
attention to. I don't get the impression that you care about how things
actually work; you seem much more interested in making some baroque
rhetorical point about how all cypherpunks are evil. (In particular, I'm
suspicious that you think wiretaps are unconstitutional yet it's evil to
try to avoid them with crypto. I think you want someone to write you
several pages' worth of memorandum about how wiretaps are legal, so that
you can cleverly turn around and argue that defeating something which turns
out to be so clearly legal must, in fact, be wrong. And I think you take
that position simply to be contrary.)

If you are truly interested in the legal questions around notice to
subjects and Title III wiretaps, see LaFave & Israel, "Criminal Procedure"
(West). It's got quite a few pages of discussion about Title III. I'm not
going to summarize it here because my copy is old enough that I don't know
if the research behind it is still current, and I'm not in the mood to do
free research for people who will ignore my results. But I'm willing to bet
that you'll never look it up anyway. 

>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.

The EFF's failure to work on your little project seems like it might be
caused by:

1.	a conclusion that it's not a viable argument, and hence a waste of
time/effort
2.	a conclusion that the constitutionality of wiretaps isn't specialized
enough that they should concentrate on it, they can leave that argument to
well-funded defense attorneys for Mafia/drug clients, who deal with wiretap
evidence frequently
3.	lack of a good case to raise it with

My guess is it's mostly (1), though (2) and (3) might be enough to make it
uninteresting even if (1) wasn't true. But I don't know poo about how or
why EFF decides which issues to work on. Are you even a member? 

--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |

>This sounds like a very reasonable proposal. But please don't take a lack
>of response to your speculation as an endorsement of your idea, or a
>suggestion that it's got even the teeniest shred of merit. I understood you
>to be suggesting that because nobody's shown to your satisfaction that it's
>meritless, you've somehow stumbled across something important. 

how about this-- to please you and Unicorn
I'll be very, very careful in the future about insinuating that
anything I have to say is important. (g)

the point of the post was simply, "gosh, here is something that
would be interesting to have a discussion on here, and I don't
recall much of it before on this list, and it seems like some
people here would have some knowledge in the area they might
like to share". 

of course lack or presence of a response to anything I or anyone
else says here is a pretty meaningless metric. but I was speculating
that there might be some weaknesses in wiretap laws because it didn't
seem like there had been a huge amount of attention focused on them
based on what I've seen on this list-- relative to the *enormous*
attention focused on ITAR case law, software patents (esp. crypto), etc.

>This response illustrates precisely why Uni was reasonable in declining to
>give you references. If you're not willing to look up your own crackpot
>ideas, you certainly shouldn't imagine that someone else is.

a hint to you: lack of response is sufficient to discourage further posting of
"crackpot ideas". responses, even negative ones, tends to encourage them.

>You can no more meaningfully discuss law without learning about it than you
>can discuss cryptography or biology or philosophy or any other area of
>human scholarship and knowledge.

laymen regularly have conversations with specialists, with the layman
saying, "now why ...", and the specialist may sometimes say, "y'know,
I'm not sure, I'll have to check on that myself".  there are laymen
and specialists alike on this list. I freely declare myself a layman
on the subject of law, and I think a lot of the bile aimed at me is
by people perceiving that I was somehow insinuating otherwise. part
of the fun of cyberspace imho is seeing the *civilized* 
discussions that go on between layman and specialists and the 
information transfer therein. that's the epitome of a FAQ. and if
cpunks in general weren't so elitist and hostile to newcomers, there
might be a FAQ here by now for example. ug, but I don't want to
get into FAQ flames. (of course I am aware of the cyphernomicon, 
but don't consider it very "faq like")

>You can, if you want, try to work on similar questions in parallel with
>established institutions - probably all fields have a group of rogue
>scholars or dissidents who believe nonstandard things, adopt nonstandard
>methodologies, etc.

nothing I said had any crackpot content. if you read carefully, I didn't
say, "there is no major case law on wiretapping" although Unicorn is
attributing similar statements to me. I'm merely saying, "hey guys,
it would be interesting to focus some attention on wiretap case law
in the same way rapt attention is being focused on e.g. ITAR etc."
I fully agree that Bell has some really fringe ideas about the law,
but it was Unicorn who grouped me in with Bell. I find myself agreeing
with some of his points, but nothing regarding novel interpretations
of laws unrecognized by the court system.

> I
>think that it's interesting and good that people are working on their own
>theories of law apart from the traditional institutional ones.

for the record, that's something Bell is doing that Unicorn mistakenly
attributed to me. I'm advocating challenging the laws not via anarchy
or technical means but using the built-in
mechanism to do so-- the appeals process.

>I think it's a shame when people excited about
>their own legal theories get innocent third parties roped into these
>peculiar scams. (Then again, there's the argument that this is evolution in
>action.)

point well taken.

>So that's a long way of saying "plonk." I don't think it's productive for
>me to try to keep track of multiple versions of the constitution; and I've
>settled on the one that's used today in court as the one I'm going to pay
>attention to. I don't get the impression that you care about how things
>actually work; you seem much more interested in making some baroque
>rhetorical point about how all cypherpunks are evil.

ahem, no I take pains not to "demonize" them. <g>

 (In particular, I'm
>suspicious that you think wiretaps are unconstitutional yet it's evil to
>try to avoid them with crypto.

whoa, I don't call anything evil and I didn't call wiretaps unconstitutional.
I said that they *might* be, and I'm interesting in exploring arguments
that support that view. there is much example in law of laws that were
passed and considered "constitutional" until they were appealed to the
supreme court. I am asking about similar situations relative to wiretap
law. I'm saying that a supreme court case is about the final straw, and
lacking that, there may be a route to actually legally refuting wiretapping.

what I am saying is that cpunks can't have it both ways. either you
agree with the law or you don't. you can't pick and choose. if you disagree
with the law, you would do things like defy legal warrants using crypto
and refusing to hand over keys even when given a valid subpoena. such
a position is anti-law and anti-constitution imho.

 I think you want someone to write you
>several pages' worth of memorandum about how wiretaps are legal, so that
>you can cleverly turn around and argue that defeating something which turns
>out to be so clearly legal must, in fact, be wrong. And I think you take
>that position simply to be contrary.)

sounds like something Bell would do. no, I'm looking for weaknesses in
wiretap law such that a seasoned lawyer might mount an actual legal
case in trying to appeal to the supreme court and get a favorable decision
that rules wiretapping in certain kinds of situations  illegal. there
are definite restrictions on wiretapping based on case law. if one
could demonstrate that these restrictions are exactly those that
are being defied ala clipper, you have a very good case that the
government is trying to *expand* and not merely perpetuate its
so-called wiretapping "authority"

>
>If you are truly interested in the legal questions around notice to
>subjects and Title III wiretaps, see LaFave & Israel, "Criminal Procedure"
>(West). It's got quite a few pages of discussion about Title III. 

thanks for the reference;

>The EFF's failure to work on your little project seems like it might be
>caused by:

excuse me, this is not "my little project". I take no ownership of
it at all. I post to fire off the neurons of others.

>1.	a conclusion that it's not a viable argument, and hence a waste of
>time/effort
>2.	a conclusion that the constitutionality of wiretaps isn't specialized
>enough that they should concentrate on it, they can leave that argument to
>well-funded defense attorneys for Mafia/drug clients, who deal with wiretap
>evidence frequently
>3.	lack of a good case to raise it with

or, 4. the EFF has never seriously considered the possibility of trying to 
challenge Clipper etc. by challenging wiretap law. that I find more probable 
than all of the above-- i.e. the thought hasn't yet entered their collective
brain.

case in point: Bernstein was pursuing his case for a long time without
any help from the EFF. the EFF did *not* help him from the beginning.
he was on his own for a long time. the EFF decided to help after they
recognized the sheer political value of the case. I would suggest that
there haven't been any high-profile wiretap challenges, so that therefore
the EFF hasn't noticed them and piggybacked on them. I would suggest
that the history is that EFF, unlike say the ACLU, doesn't aggressively
*initiate* the case, but rather piggybacks on an existing case (I'm
not criticizing this, any help is better than nothing).

hence my interest in seeing some try to attack the legitimacy of clipper
via the wiretapping route I am focusing on at this nanosecond.

>But I don't know poo about how or
>why EFF decides which issues to work on.

as I suggest above, I would say it is something like serendipity and
piggybacking existing cases. the infamous Steve Jackson Games case
would be another example. no, I'm not an EFF member, I just comment
on them as an outside observer in e.g. the way people talk about the
ACLU relative to civil cases.

in short, this would be something that would *really* scare the spooks:
an attack on the legitimacy of wiretapping as it is now practiced
in some way, some novel attack that is different than any prior 
questioning of wiretapping. if you got an individual and the EFF/ACLU
involved, the publicity alone would be spectacular. notice how
Bernstein doesn't really give much of a snot about Snuffle, it's not
all that significant of an algorithm. it was clearly a *manufactured
case* to challenge the law. same with Junger-- he doesn't really 
give much of a damn about tangible restrictions on his teaching,
they aren't major impediments if they aren't enforced. they 
manufactured their cases specifically to try to get the sword
to the weak spot on the dragon's scales. it'll be a long and
arduous process, and a long shot. but the postive publicity is
absolutely priceless even lacking clear-cut victories. (notice the
cyberspace celebration when a judge merely declared code "speech"
 in the bernstein case.) ask Bernstein how long he has been working on
his case. Junger is a newbie compared to Bernstein.

On Tue, 8 Oct 1996, Vladimir Z. Nuri wrote:

I wasn't going to post on this thread again till I read this:

> of course lack or presence of a response to anything I or anyone
> else says here is a pretty meaningless metric. but I was speculating
> that there might be some weaknesses in wiretap laws because it didn't
> seem like there had been a huge amount of attention focused on them
> based on what I've seen on this list-- relative to the *enormous*
> attention focused on ITAR case law, software patents (esp. crypto), etc.

Wait, a lack of response on this is a meaningless metric, yet a lack of
response on this list is enough for you to make a judgement about the
nature of weaknesses in wiretap law?  Meaningless or meaningful?  Which is
it?

I think medication time passed without notice at the "Nuri" residence.


> I fully agree that Bell has some really fringe ideas about the law,
> but it was Unicorn who grouped me in with Bell.

Uh, where was this exactly?  I think it was you who grouped yourself in
with Bell and then attributed the idea to me.

> > I
> >think that it's interesting and good that people are working on their own
> >theories of law apart from the traditional institutional ones.
> 
> for the record, that's something Bell is doing that Unicorn mistakenly
> attributed to me. I'm advocating challenging the laws not via anarchy
> or technical means but using the built-in
> mechanism to do so-- the appeals process.

When did I attribute anything of the kind to you?  All I did was quote
your "new direction" in wiretap case law intrepretation which is neither
new, a direction worth going in, nor good legal intrepretation.

> sounds like something Bell would do. no, I'm looking for weaknesses in
> wiretap law such that a seasoned lawyer might mount an actual legal
> case in trying to appeal to the supreme court and get a favorable decision
> that rules wiretapping in certain kinds of situations  illegal.

And we seasoned lawyers, three of us last I counted, told you that you
were an idiot for suggesting it.  I guess we hurt your feelings because
you turned around and asked for a "civilized" lawyer.  (Read: one who will
listen to your ranting).  You wanted a legal opinion, you got more than
one. Now go away.

> >The EFF's failure to work on your little project seems like it might be
> >caused by:
> 
> excuse me, this is not "my little project". I take no ownership of
> it at all. I post to fire off the neurons of others.

Try using your own next time.

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li

Unicorn writes:

[challenging wiretap laws]
>And we seasoned lawyers, three of us last I counted, told you that you
>were an idiot for suggesting it.  I guess we hurt your feelings because
>you turned around and asked for a "civilized" lawyer.  (Read: one who will
>listen to your ranting).  You wanted a legal opinion, you got more than
>one. Now go away.

look, I was not going to rub this in your face at all, but you don't
seem to have a clue about this. the fact that you/others here can't 
scrounge enough imagination to come up with an attack against wiretap laws 
based on case law and think such a think is a waste of time
is pretty meaningless in your case. I don't think
you have an imaginative bone in your body, hence the great vitriol
that you unleash upon me whenever I use my own.

from the article just recently posted:

>
>http://www.sfgate.com/cgi-bin/examiner/article.cgi?year=1996&month=10&day=06&art
>icle=BUSINESS2814.dtl
>
>Encryption controversy pits life against liberty

>"Wiretapping is the main issue," said Stewart Baker, former general counsel
>of the National Security Agency, the CIA's code-breaking and eavesdroping
>cousin.

as TCM just pointed out, this is a departure on the part of the administration
in describing the tactics of clipper. clearly, WIRETAPPING AUTHORITY IS
KEY TO CLIPPER LEGITIMACY. hence a legal challenge to wiretapping is an
extremely critical angle to the situation.

>
>"If two criminals are discussing a plot over the telephone and we have a
>wiretap order, the encryption would negate the wiretap," said Michael
>Vatis, a senior Department of Justice official.
>
...

>"For serious investigations involving terrorists or organized crime . . .
>where you're worried about hundreds of people being killed . . . the whole
>point is to keep the investigation secret or the whole thing blows up," he
>said.

as I just recently wrote, it seems to me one of the key points of discussion
that is just now emerging in this debate is the demand by the gov't
that wiretapping be done IN SECRET without knowledge of the suspect,
whereas civil libertarians seem to be challenging this point in particular.
it could be a magic bullet it defeating wiretapping. it seems to really
get to the core of the debate about key escrow etc.

>Not so, argued Daniel Weitzner, an attorney with the civil libertarian
>Center for Democracy and Technology inWashington, D.C. Forgetting
>encryption for a moment, Weitzner said, a wiretap is unlike any other tool
>in the
>investigator's arsenal.
>
>"To get documents sitting on my computer, the FBI has to come into my
>office with a search warrant," Weitzner said. "I have to know about it."

the same distinction again. very interesting.  I was just emphasizing
that in my post.

>
>Exactly the reverse is true for a wiretap. To be effective, the subject
>must be ignorant of the tap. Weitzner said this
>notion of a "secret search" went against a central principle of the Fourth
>Amendment, which protects people from
>unreasonable search and seizure.

whoa, apparently this would be news to Unicorn, who thinks it would be
a waste of time to argue against the established legitimacy of wiretapping
and considers himself a premiere lawyer-dude.  well, I'll just let Unicorn
argue with Weitzner, (whose credentials are rather impressive and I 
trust more, btw..)  I'd be interested to hear what Weitzner says, 
Uni...

so what we have here is a very knowledgeable lawyer who has helped
out EFF argue that wiretaps are unconstitutional based on the precise
aspect that I was focusing on in a post that Unicorn flamed me for:
that they are secret, unknown to the suspect,
and that this thereby might constitute an "unreasonable"
search and seizure. I don't claim to have originated this of course, but
I was emphasizing it in my post, and Unicorn objected.

reading what Weitzner wrote, it is not inconceivable to imagine
him having the position that wiretaps in their present form might
not survive a court challenge, i.e. it would at least not be
a waste of time to mount such a case, as Unicorn belligerently
bellows above is obvious to anyone with a smidgeon of legal
background..

On Wed, 9 Oct 1996, Vladimir Z. Nuri wrote:

> 
> Unicorn writes:
> 
> [challenging wiretap laws]
> >And we seasoned lawyers, three of us last I counted, told you that you
> >were an idiot for suggesting it.  I guess we hurt your feelings because
> >you turned around and asked for a "civilized" lawyer.  (Read: one who will
> >listen to your ranting).  You wanted a legal opinion, you got more than
> >one. Now go away.
> 
> look, I was not going to rub this in your face at all, but you don't
> seem to have a clue about this. the fact that you/others here can't 
> scrounge enough imagination to come up with an attack against wiretap laws 
> based on case law and think such a think is a waste of time
> is pretty meaningless in your case. I don't think
> you have an imaginative bone in your body, hence the great vitriol
> that you unleash upon me whenever I use my own.

Well "Vlad," as the most creative lawyer on the list, it seems it's up
to you to get us out of this mess we are in.  I'm certainly not biting the
bait and researching the topic for you because you call me unimaginative.

Clearly no one on the list cares.  Perhaps you should look elsewhere for
your support (hint hint).

> from the article just recently posted:
> 
> >
> >http://www.sfgate.com/cgi-bin/examiner/article.cgi?year=1996&month=10&day=06&art
> >icle=BUSINESS2814.dtl
> >
> >Encryption controversy pits life against liberty
> 
> >"Wiretapping is the main issue," said Stewart Baker, former general counsel
> >of the National Security Agency, the CIA's code-breaking and eavesdroping
> >cousin.
> 
> as TCM just pointed out, this is a departure on the part of the administration
> in describing the tactics of clipper. clearly, WIRETAPPING AUTHORITY IS
> KEY TO CLIPPER LEGITIMACY. hence a legal challenge to wiretapping is an
> extremely critical angle to the situation.

"Newtonian Science is the KEY TO TRAVEL TO THE MOON.  Hence a challenge to
newtonian Science is an extremely critical angle to the situation.

Note the similarities.  1> We've already been to the moon.  2> Newtonian
Science is unlikely to be argued away in a way that will negate moon
travel any time soon.

I understand that it's difficult for you to grasp how firmly entrenched
the concept of wiretapping is in law enforcement, courts and the
legislature, and that your novel new approach has been tried before.
Part of the reason its hard for you to understand is because you haven't
bothered to go check.  Instead you have to look for civil libertarian
lawyers to try and say what you can't because you haven't looked.

You repeating your claim over and over again isn't going to get me to lift
a finger to research it for you.  You've been given several suggestions as
to where to look to show the massive holes in your claim in about five
minutes.  I think if you were to give it a try you would redden quite
quickly on realizing how hard us "imaginationless" lawyers were laughing
at you all this time.

> >"If two criminals are discussing a plot over the telephone and we have a
> >wiretap order, the encryption would negate the wiretap," said Michael
> >Vatis, a senior Department of Justice official.
> >
> ...
> 
> >"For serious investigations involving terrorists or organized crime . . .
> >where you're worried about hundreds of people being killed . . . the whole
> >point is to keep the investigation secret or the whole thing blows up," he
> >said.
> 
> as I just recently wrote, it seems to me one of the key points of discussion
> that is just now emerging in this debate is the demand by the gov't
> that wiretapping be done IN SECRET without knowledge of the suspect,

This is nothing new "Vlad."  It's been a point of contention for over 50
years and a well settled one for the last 25-30.  Go look it up.

I also call upon you to look at the sources of these claims.  Stewart
Baker, now at Steptoe and Johnson, formerly of the NSA, heard speaking at
the ABA Conference on Law Enforcement and Intelligence.  Michael Vatis,
also heard speaking at the ABA Conference, sidekick of Gorelick and young
shining star in the Justice Department.  These are the people who will
benefit from associating wiretap and crypto because wiretap is extremely
unlikely to be challenged as an investigative tool in any way shape or
form.  These are the arguments of the law enforcement side.

You are shooting crypto in the foot if you allow wiretapping into the
argument.  You are doing more damage than good.

> whereas civil libertarians seem to be challenging this point in particular.
> it could be a magic bullet it defeating wiretapping. it seems to really
> get to the core of the debate about key escrow etc.

No, what gets to the core of the debate about key escrow is whether strong
encryption which does not comply will be made illegal to possess or use.
This is a meaningless detour and a waste of time.  So much so that I
wonder if you are not working for some local agency (I say local because
your posts are simply not crafty enough to be any kind of concerted
disinformation attempt on the part of authorities with wider briefs).

Meaningful attempts to derail Clipper will come along the same lines they
always have.  Economic objections made by industry and challenges to
thinly stretched regulations like ITAR which have been untested in the
vein before.  Revamping the country's entire wiretap law is not only a far
fetched project, its nearly a wild goose chase.  Please take it elsewhere.

> >Not so, argued Daniel Weitzner, an attorney with the civil libertarian
> >Center for Democracy and Technology inWashington, D.C. Forgetting
> >encryption for a moment, Weitzner said, a wiretap is unlike any other tool
> >in the
> >investigator's arsenal.
> >
> >"To get documents sitting on my computer, the FBI has to come into my
> >office with a search warrant," Weitzner said. "I have to know about it."
> 
> the same distinction again. very interesting.  I was just emphasizing
> that in my post.

Notice, however, that he doesn't suggest trying to overturn the wiretap
laws to get at Clipper.  Same distinction there too.

Law enforcement says "We need this power" attorneys with the Center for
Democracy and Technology (which by the way, while "Vlad" respects in
terms of legal prowess, I do not) whine "But they never should have
gotten wiretap technology in the first place."

You really thing that's a positive argument?  Go for it.  Dedicate your
life to the subject.  You have all my encouragement.

> >Exactly the reverse is true for a wiretap. To be effective, the subject
> >must be ignorant of the tap. Weitzner said this
> >notion of a "secret search" went against a central principle of the Fourth
> >Amendment, which protects people from
> >unreasonable search and seizure.
> 
> whoa, apparently this would be news to Unicorn, who thinks it would be
> a waste of time to argue against the established legitimacy of wiretapping
> and considers himself a premiere lawyer-dude.  well, I'll just let Unicorn
> argue with Weitzner, (whose credentials are rather impressive and I 
> trust more, btw..)  I'd be interested to hear what Weitzner says, 
> Uni...

I won't be talking to Weitzner obviously.  It a losing man's argument.
"We wouldn't be in the mess we are in now if the Supreme Court hadn't
gelded the 4th amendment in the early years of its development."

Good luck.

If Weitzner's credentials are so impressive, why isn't he in private
practice where the big money and influence are?  That's where Stewart
Baker is.  That's where Gorelick is heading.  That's where Freeh is
headed, and it's what Vatis will be up to in 3 years time.

> so what we have here is a very knowledgeable lawyer who has helped
> out EFF argue that wiretaps are unconstitutional based on the precise
> aspect that I was focusing on in a post that Unicorn flamed me for:
> that they are secret, unknown to the suspect,
> and that this thereby might constitute an "unreasonable"
> search and seizure. I don't claim to have originated this of course, but
> I was emphasizing it in my post, and Unicorn objected.

Then it seems you should take the discussion to the great legal mind of
our times, Weitzner, rather than waste our time and bandwidth with it.

> reading what Weitzner wrote, it is not inconceivable to imagine
> him having the position that wiretaps in their present form might
> not survive a court challenge, i.e. it would at least not be
> a waste of time to mount such a case, as Unicorn belligerently
> bellows above is obvious to anyone with a smidgeon of legal
> background..

So call him and foster such a challenge "Vlad."

I'm anxious to hear about your progress.

Oh, speaking of which, what happened to your super-clever ISP encrypts
every peices of mail that comes in idea?  I don't see it mentioned here.

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li

On Wed, 9 Oct 1996, Black Unicorn wrote:
> On Wed, 9 Oct 1996, Vladimir Z. Nuri wrote:
> > Unicorn writes:
> > 
> > [challenging wiretap laws]
> > >And we seasoned lawyers, three of us last I counted, told you that you
> > >were an idiot for suggesting it.  I guess we hurt your feelings because
> > >you turned around and asked for a "civilized" lawyer.  (Read: one who will
> > >listen to your ranting).  You wanted a legal opinion, you got more than
> > >one. Now go away.
> > 
> > look, I was not going to rub this in your face at all, but you don't
> > seem to have a clue about this. the fact that you/others here can't 
> > scrounge enough imagination to come up with an attack against wiretap laws 
> > based on case law and think such a think is a waste of time
> > is pretty meaningless in your case. I don't think
> > you have an imaginative bone in your body, hence the great vitriol
> > that you unleash upon me whenever I use my own.
> 
> Well "Vlad," as the most creative lawyer on the list, it seems it's up
> to you to get us out of this mess we are in.  I'm certainly not biting the
> bait and researching the topic for you because you call me unimaginative.



Given all the members of so-called "Organized Crime" who have been 
convicted using wiretaps, we must assume that all of their lawyers were 
similarly unimaginative.

Don't tell Don Vito!




> 
> Clearly no one on the list cares.  Perhaps you should look elsewhere for
> your support (hint hint).
> 
> > from the article just recently posted:
> > 
> > >
> > >http://www.sfgate.com/cgi-bin/examiner/article.cgi?year=1996&month=10&day=06&art
> > >icle=BUSINESS2814.dtl
> > >
> > >Encryption controversy pits life against liberty
> > 
> > >"Wiretapping is the main issue," said Stewart Baker, former general counsel
> > >of the National Security Agency, the CIA's code-breaking and eavesdroping
> > >cousin.
> > 
> > as TCM just pointed out, this is a departure on the part of the administration
> > in describing the tactics of clipper. clearly, WIRETAPPING AUTHORITY IS
> > KEY TO CLIPPER LEGITIMACY. hence a legal challenge to wiretapping is an
> > extremely critical angle to the situation.
> 
> "Newtonian Science is the KEY TO TRAVEL TO THE MOON.  Hence a challenge to
> newtonian Science is an extremely critical angle to the situation.
> 
> Note the similarities.  1> We've already been to the moon.  2> Newtonian
> Science is unlikely to be argued away in a way that will negate moon
> travel any time soon.
> 
> I understand that it's difficult for you to grasp how firmly entrenched
> the concept of wiretapping is in law enforcement, courts and the
> legislature, and that your novel new approach has been tried before.
> Part of the reason its hard for you to understand is because you haven't
> bothered to go check.  Instead you have to look for civil libertarian
> lawyers to try and say what you can't because you haven't looked.
> 
> You repeating your claim over and over again isn't going to get me to lift
> a finger to research it for you.  You've been given several suggestions as
> to where to look to show the massive holes in your claim in about five
> minutes.  I think if you were to give it a try you would redden quite
> quickly on realizing how hard us "imaginationless" lawyers were laughing
> at you all this time.
> 
> > >"If two criminals are discussing a plot over the telephone and we have a
> > >wiretap order, the encryption would negate the wiretap," said Michael
> > >Vatis, a senior Department of Justice official.
> > >
> > ...
> > 
> > >"For serious investigations involving terrorists or organized crime . . .
> > >where you're worried about hundreds of people being killed . . . the whole
> > >point is to keep the investigation secret or the whole thing blows up," he
> > >said.
> > 
> > as I just recently wrote, it seems to me one of the key points of discussion
> > that is just now emerging in this debate is the demand by the gov't
> > that wiretapping be done IN SECRET without knowledge of the suspect,
> 
> This is nothing new "Vlad."  It's been a point of contention for over 50
> years and a well settled one for the last 25-30.  Go look it up.
> 
> I also call upon you to look at the sources of these claims.  Stewart
> Baker, now at Steptoe and Johnson, formerly of the NSA, heard speaking at
> the ABA Conference on Law Enforcement and Intelligence.  Michael Vatis,
> also heard speaking at the ABA Conference, sidekick of Gorelick and young
> shining star in the Justice Department.  These are the people who will
> benefit from associating wiretap and crypto because wiretap is extremely
> unlikely to be challenged as an investigative tool in any way shape or
> form.  These are the arguments of the law enforcement side.
> 
> You are shooting crypto in the foot if you allow wiretapping into the
> argument.  You are doing more damage than good.
> 
> > whereas civil libertarians seem to be challenging this point in particular.
> > it could be a magic bullet it defeating wiretapping. it seems to really
> > get to the core of the debate about key escrow etc.
> 
> No, what gets to the core of the debate about key escrow is whether strong
> encryption which does not comply will be made illegal to possess or use.
> This is a meaningless detour and a waste of time.  So much so that I
> wonder if you are not working for some local agency (I say local because
> your posts are simply not crafty enough to be any kind of concerted
> disinformation attempt on the part of authorities with wider briefs).
> 
> Meaningful attempts to derail Clipper will come along the same lines they
> always have.  Economic objections made by industry and challenges to
> thinly stretched regulations like ITAR which have been untested in the
> vein before.  Revamping the country's entire wiretap law is not only a far
> fetched project, its nearly a wild goose chase.  Please take it elsewhere.
> 
> > >Not so, argued Daniel Weitzner, an attorney with the civil libertarian
> > >Center for Democracy and Technology inWashington, D.C. Forgetting
> > >encryption for a moment, Weitzner said, a wiretap is unlike any other tool
> > >in the
> > >investigator's arsenal.
> > >
> > >"To get documents sitting on my computer, the FBI has to come into my
> > >office with a search warrant," Weitzner said. "I have to know about it."
> > 
> > the same distinction again. very interesting.  I was just emphasizing
> > that in my post.
> 
> Notice, however, that he doesn't suggest trying to overturn the wiretap
> laws to get at Clipper.  Same distinction there too.
> 
> Law enforcement says "We need this power" attorneys with the Center for
> Democracy and Technology (which by the way, while "Vlad" respects in
> terms of legal prowess, I do not) whine "But they never should have
> gotten wiretap technology in the first place."
> 
> You really thing that's a positive argument?  Go for it.  Dedicate your
> life to the subject.  You have all my encouragement.
> 
> > >Exactly the reverse is true for a wiretap. To be effective, the subject
> > >must be ignorant of the tap. Weitzner said this
> > >notion of a "secret search" went against a central principle of the Fourth
> > >Amendment, which protects people from
> > >unreasonable search and seizure.
> > 
> > whoa, apparently this would be news to Unicorn, who thinks it would be
> > a waste of time to argue against the established legitimacy of wiretapping
> > and considers himself a premiere lawyer-dude.  well, I'll just let Unicorn
> > argue with Weitzner, (whose credentials are rather impressive and I 
> > trust more, btw..)  I'd be interested to hear what Weitzner says, 
> > Uni...
> 
> I won't be talking to Weitzner obviously.  It a losing man's argument.
> "We wouldn't be in the mess we are in now if the Supreme Court hadn't
> gelded the 4th amendment in the early years of its development."
> 
> Good luck.
> 
> If Weitzner's credentials are so impressive, why isn't he in private
> practice where the big money and influence are?  That's where Stewart
> Baker is.  That's where Gorelick is heading.  That's where Freeh is
> headed, and it's what Vatis will be up to in 3 years time.
> 
> > so what we have here is a very knowledgeable lawyer who has helped
> > out EFF argue that wiretaps are unconstitutional based on the precise
> > aspect that I was focusing on in a post that Unicorn flamed me for:
> > that they are secret, unknown to the suspect,
> > and that this thereby might constitute an "unreasonable"
> > search and seizure. I don't claim to have originated this of course, but
> > I was emphasizing it in my post, and Unicorn objected.
> 
> Then it seems you should take the discussion to the great legal mind of
> our times, Weitzner, rather than waste our time and bandwidth with it.
> 
> > reading what Weitzner wrote, it is not inconceivable to imagine
> > him having the position that wiretaps in their present form might
> > not survive a court challenge, i.e. it would at least not be
> > a waste of time to mount such a case, as Unicorn belligerently
> > bellows above is obvious to anyone with a smidgeon of legal
> > background..
> 
> So call him and foster such a challenge "Vlad."
> 
> I'm anxious to hear about your progress.
> 
> Oh, speaking of which, what happened to your super-clever ISP encrypts
> every peices of mail that comes in idea?  I don't see it mentioned here.
> 
> --
> I hate lightning - finger for public key - Vote Monarchist
> unicorn@schloss.li
> 
>