Re: legality of wiretapping: a "key" distinction

At 08:43 PM 10/5/96 -0700, Detweiler wrote:
>>"Right to choose to be in contempt of court" ?  If only I could attach a
>>sound file with my howling laughter to this post.
>
>I find it as ludicrous as you do, but it's the clear insinuation
>suggested by hard-core cypherpunks / anarchists in this forum.

I wrote something which you might be confusing for this argument; in case
this is what you mean, I've reproduced it below:

[originally sent on 9/18/96]
>There's a world of difference between the government subpoena-ing
something >from me, where I can delay disclosure until I've exhausted my
legal avenues >to challenge disclosure, and the government demanding data
from an at best >disinterested third party who cares not at all if I get my
day in court >before they disclose. With the second scenario, I'm forced to
try to >"unring the bell", and somehow limit the spread of otherwise
>private/confidential data in a community (law enforcement) which is
>organized to collect and retain information. Ha, ha. Given today's
Congress >and Supreme Court, there's probably precious little chance that
keys >disclosed prematurely or erroneously won't be used to collect
evidence >which will be admissible despite the lack of meaningful
opportunity to >challenge the "recovery" of a key.

Also, there is an important difference between making a policy argument or
expressing a preference, e.g.:

"I like having a choice between disclosing information which is requested
and suffering the penalties for contempt of court"

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. 

>>Do not make the mistake of thinking there is no case law on wiretap simply
>>because you have not/are too lazy to go to the library and look it up.
>
>I said, "at least it is rarely quoted here", lawyer-boy.

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. It's difficult to come up with a good summary of legal issues or
subjects which is readable by lay people and short and accurate (esp. given
that it will be interpreted by lay people in potentially 51 domestic
jurisdictions, plus foreign folks).

Good, fast, cheap, pick any two. 

As Brian Davis and Uni have pointed out, people who keep current enough on
legal topics to be able to give you a good answer will probably want to get
paid for doing so. Saying "here's a legal argument that I made up in the
shower. what do you guys think of it?" and expecting a detailed explanation
of why it's good or bad is the same as saying "here's my new crypto
algorithm that I thought of in the shower, what do you guys think of it?". 

>>You propose to refight a case soundly resolved ages ago and you propose to
>>get the rest of the list to do your homework for you.
>
>nevertheless, you might not come off as so utterly condescending
>and self-pretentious if you gave even the slightest smidgeon
>of a reference yourself, instead of preferring to insult a poster.

Merely asking the question "Is there case law on wiretaps?" suggests that
an answer which includes references will be wasted on you. It will probably
be wasted because your level of interest doesn't seem to have spurred you
to darken the doorstep of a library or bookstore yet; so an answer which
requires you to do so seems unhelpful. It will also probably be wasted
because if you don't already know that there's caselaw about it you
probably don't have enough legal background to place whatever new
information you might get from those references in a useful conceptual
framework. 

But perhaps my speculation is wrong and you are prepared to follow up
meaningfully on references, so ..

Go to a law library or larger general library and ask the librarian to show
you where the annotated copy of 18 USC 2510 is. Read the statute. Read the
legislative history. Read the annotations. Read the cases which were
annotated. Repeat this process until you reach 18 USC 2709 or die of boredom.

Ask the librarian to help you find LaFave's treatises on search & seizure.
Read them.

(The answer to most of the "how do I find out about 'X'?" questions is to
make friends with a librarian who doesn't mind helping you out, just like
with research questions in other fields you may not be familiar with. But
surely it's not possible to get much beyond the age of 12 or so and not
know that ..?)

Try "Understanding Criminal Procedure" by Dressler (Matthew Bender, 1991),
and "Criminal Law" by LaFave & Scott (West). 

(For extra credit, ask for the USCA/USCS annotated copy of the Fourth
Amendment, and read those annotations and cases.)

If there's a law school near you, you might go to the school's bookstore
and look for books in the "Nutshell" series, or the "Emanuel's" series, or
the hardbound hornbooks. These books are mostly used by law students to get
an overview of a particular area of the law. They are not especially
detailed nor up-to-the-minute current but usually aren't totally wrong.
They also don't usually touch on a particular state's law, but discuss
either federal law or an amalgam of state law, so they aren't good for
solving a particular concrete problem. But they will help you figure out
that, e.g., wiretaps have been legal for at least 60-70 years.

Now that you've got some references to work with, please write back and
tell us what you learned. 

(Dorothy Denning & others have written a summary of wiretap procedure which
I don't have time/energy to check for correctness - but it's at 
<http://www.cpsr.org/cpsr/privacy/communications/wiretap/denning_wiretap_pro
cedure_paper.txt>. EFF and CPSR both seem to have some wiretap/privacy
materials available.)

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

On Sun, 6 Oct 1996, Greg Broiles wrote:

> At 08:43 PM 10/5/96 -0700, Detweiler wrote:
> >>"Right to choose to be in contempt of court" ?  If only I could attach a
> >>sound file with my howling laughter to this post.
> >
> >I find it as ludicrous as you do, but it's the clear insinuation
> >suggested by hard-core cypherpunks / anarchists in this forum.
> 
> I wrote something which you might be confusing for this argument; in case
> this is what you mean, I've reproduced it below:
> 
> [originally sent on 9/18/96]
> >There's a world of difference between the government subpoena-ing
> something >from me, where I can delay disclosure until I've exhausted my
> legal avenues >to challenge disclosure, and the government demanding data
> from an at best >disinterested third party who cares not at all if I get my
> day in court >before they disclose. With the second scenario, I'm forced to
> try to >"unring the bell", and somehow limit the spread of otherwise
> >private/confidential data in a community (law enforcement) which is
> >organized to collect and retain information. Ha, ha. Given today's
> Congress >and Supreme Court, there's probably precious little chance that
> keys >disclosed prematurely or erroneously won't be used to collect
> evidence >which will be admissible despite the lack of meaningful
> opportunity to >challenge the "recovery" of a key.
> 
> Also, there is an important difference between making a policy argument or
> expressing a preference, e.g.:
> 
> "I like having a choice between disclosing information which is requested
> and suffering the penalties for contempt of court"
> 
> 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. 

Actually, believe it or not, I may have an obscure one.

Said of those hauled before a court and ordered to disclose secret
banking records, even though doing so will subject them to severe
penalities and even jail time on their return home:

"...the defendant should feel the full measure of each sovereign's
conflicting commands and so choose between laws of those two sovereigns."
Westinghouse Elec. Corp. v. Rio Algom, Ltd., 480 F. Supp. 1138 (N.D. Ill.
1979).

Of course in this case the U.S. measures were rather a bit more dire, but
it does suggest a tacid recognition that there is nothing literally
illegal about being in contempt of court, even if it was an attempt to
resolve a conflict of laws problem in this case.

It's also worth noting that contempt of court is rarely punative in
nature.  (Different rules apply when it is).  Instead, it is coercive.
Force is applied in increasing measures until the individual either gives
into the court demands, or it is clear that force will not be of any
effect.  There is no real law being broken per se, merely an exercise of
power by the court.  If you comply, sanctions will be removed.  The only
sanctions which will be preserved after the fact will be those which were
levied to enforce compliance prior to that compliance.

All this is entirely academic in any event to the original point.  There
is no defined right to be in contempt, only the right of the court to
enforce its rulings and to compell testomony of unwiling witnesses.  The
fact that an act is not illegal does not make it a right.  There is
nothing I see in the constitution to support the argument that it is a
right in any way shape or form to refuse a lawful order of the court.

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

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

>Also, there is an important difference between making a policy argument or
>expressing a preference, e.g.:
>
>"I like having a choice between disclosing information which is requested
>and suffering the penalties for contempt of court"
>
>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.

[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.

>As Brian Davis and Uni have pointed out, people who keep current enough on
>legal topics to be able to give you a good answer will probably want to get
>paid for doing so. Saying "here's a legal argument that I made up in the
>shower. what do you guys think of it?" and expecting a detailed explanation
>of why it's good or bad is the same as saying "here's my new crypto
>algorithm that I thought of in the shower, what do you guys think of it?". 

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. (Unicorn
is free to flame his testicles off as usual.)

>Merely asking the question "Is there case law on wiretaps?" suggests that
>an answer which includes references will be wasted on you.

that's an absurd paraphrase of my post. I was focusing on case law
that had certain characteristics-- a simple case that challenged the
validity of wiretapping based on the fact that the participant is
not informed such as with other forms of retrieving evidence
utilized by the court.

>Go to a law library or larger general library and ask the librarian to show
>you where the annotated copy of 18 USC 2510 is. Read the statute. Read the
>legislative history. Read the annotations. Read the cases which were
>annotated. Repeat this process until you reach 18 USC 2709 or die of boredom.

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.

>(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.

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.

On Mon, 7 Oct 1996, Vladimir Z. Nuri wrote:

> [wiretaps]

Someone said:

> 
> >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. 

"Vlad" replied:

> 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 sounds of the wheels spinning in reverse are suddenly very pronounced.

> 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.

There are several cases which refer directly to what you say.  Get off
your fat and go look them up yourself.
 
> >As Brian Davis and Uni have pointed out, people who keep current enough on
> >legal topics to be able to give you a good answer will probably want to get
> >paid for doing so. Saying "here's a legal argument that I made up in the
> >shower. what do you guys think of it?" and expecting a detailed explanation
> >of why it's good or bad is the same as saying "here's my new crypto
> >algorithm that I thought of in the shower, what do you guys think of it?". 
> 
> 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. (Unicorn
> is free to flame his testicles off as usual.)

Stop asking and start paying lawyers to educate you.  Or sweat through
three years of hell in law school like the rest of us..

> >Go to a law library or larger general library and ask the librarian to show
> >you where the annotated copy of 18 USC 2510 is. Read the statute. Read the
> >legislative history. Read the annotations. Read the cases which were
> >annotated. Repeat this process until you reach 18 USC 2709 or die of boredom.
> 
> 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.

Go ahead, but don't complain when I flame my testicals off and call you a
lazy ass because above you have just admitted that you are one.  If you
want lawyers who are going to talk to laymen, try a few ABA dinners.  When
you have alienated each and every lawyer there, come back and beg here
again.

> >(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

No such animal.

> who specializes in the subject, rather than have
> a people tell me why I cannot even do this,

A [hypothetical] civilized lawyer will tell you tell you that you can't do
it as quickly as an uncivilized one.

> and must become a law
> specialized before I can even use the word "wiretap" with any 
> meaningfulness.

Though I can only speak with certainty of myself, I think many of the
legal types on the list are tired of typing pages and pages of things only
to have you bring up more innane arguments and demand more cases and so on
and so on.

Witness reputation capital, or debt, in action.

I don't think I would mind so much if a noted and credible source asked me
the same question.  With you I ask, what the hell for?  He can do his own
damn work and will probably post less if he is spending some time in the
library.  It is directly against my interests to make anything easier for
you.

Why when you use the word "wiretap" is it cause for me to get huffy?
Because you are below the level of capital where I will have any part of
supporting or contributing your "arguments."

> 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.

1>  The Status Quo is so entrenched and useful to law enforcement, that
the likes of EFF will never change it.

2>  "Many people here believe/advocate"  Where are the figures on this?

> this is curious because EFF
> etc. *are* willing to back up the cryptography cases out there,
> ala Bernstein etc.

Gee, might it be that cryptography cases are a new area of law where
limited resources are better applied because uncertainty in the law is
greater?  Duh.

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

I have little more to say to Unicorn;

>Stop asking and start paying lawyers to educate you.  Or sweat through
>three years of hell in law school like the rest of us..

look, I'm proposing an exercise for the collective cpunk brain. I gain
absolutely nothing even if you do post every wiretap law ever written and
every case ever argued. I am not facing a wiretap prosecution. my job
has nothing to do with any of the above. it's an attempt to further
collective cpunk goals. why do you keep referring to "doing my work for
me?" Broiles refers to "my little project". excuse me?
my work is in software engineering and I guarantee I'd never ask
for your opinion or help in that area (g).   you guys are getting
to hyper about this totally informal discussion environment. this
is a DEBATE SOCIETY, nothing more.  absolutely nothing is at stake
here. you remind me of the saying, "the fights in academia are so
bitter precisely because so little is at stake".


>> I simply would like to carry on a discussion with
>> a civilized lawyer
>
>No such animal.

hee, hee. a lawyer joke from a lawyer. don't see that too often.

>Though I can only speak with certainty of myself, I think many of the
>legal types on the list are tired of typing pages and pages of things only
>to have you bring up more innane arguments and demand more cases and so on
>and so on.

that's preposterous, I have never done such a thing. you might be again
mistaking me for Bell. I am not trying to drive any process here. I'm
proposing that people hunt for weaknesses in wiretap law. this is something
that would be highly beneficial to the cpunk "agenda". it has zero 
direct benefit to me, I assure you, and in fact I get a lot of trouble
for trying to positively impact the S/N on this list. can you try to
follow a simple recipe in the future? if you don't like something, 
don't say anything? I assure you that I tend to avoid subjects that
I get no response on.

>I don't think I would mind so much if a noted and credible source asked me
>the same question.  With you I ask, what the hell for?  He can do his own
>damn work and will probably post less if he is spending some time in the
>library.  It is directly against my interests to make anything easier for
>you.

classic cpunk anti-social attitude. here is a situation in which putting
everyone's brains together is far better than having one, and benefits 
everyone. you could have one person hunting through the stuff when others
have already tried. I'm proposing the equivalent of a brainstorming
session. but you are pissing on it before a single person has anything
to say. and yet you are a person who could contribute the most. do you
do the same thing where you work, piss on a brainstorm session before
it even gets started? saying the whole exercise is a waste of time?

>Why when you use the word "wiretap" is it cause for me to get huffy?
>Because you are below the level of capital where I will have any part of
>supporting or contributing your "arguments."

so don't say anything. lack of response is not a tacit endorsement, 
something that has eluded you for a long time on this list. I assure
you your blood pressure will thank you, mr. bulging veins.

>> 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.
>
>1>  The Status Quo is so entrenched and useful to law enforcement, that
>the likes of EFF will never change it.

bzzzt. routinely major law enforcement sitations and status quos are
radically altered by new court decisions. the best example I can think
of here would be the Miranda rights.  this really radically changed
police procedures and it was a precedent that was not set by law, but
by court decision.

>2>  "Many people here believe/advocate"  Where are the figures on this?

informal observation that many cpunks argue that wiretapping is 
inherently illegal based on constitutional aspects. I'm saying, perhaps
so, and maybe a supreme court would agree with you if you phrased your
objections in a novel way. of course, Clipper cases will probably
be appealed up to high courts at some point.

>> this is curious because EFF
>> etc. *are* willing to back up the cryptography cases out there,
>> ala Bernstein etc.
>
>Gee, might it be that cryptography cases are a new area of law where
>limited resources are better applied because uncertainty in the law is
>greater?  Duh.

I don't think there was a rational decision behind it, something like
"lets go find the weakest spots in the law and challenge them in court,
and formulate a strategy" that I am suggesting. Bernstein introduced 
his case on his own without
any help from the EFF and they "piggybacked" on it. notice that wiretapping
is at the heart of Clipper and many other cpunk issues. if you could get
a new favorable decision on it, or even just a *case* out there, it's
fantastic publicity and good for public awareness.