legality of wiretapping: a "key" distinction

reponses to my last post were very illuminating and
interesting, and one key point by someone-or-other
caught my attention.

he made the distinction of "search and seizure" made with
the knowledge of the person involved, and "search and
seizure" such as wiretapping done without the knowledge
of the person surveilled.

if one were to try to say that wiretapping was unconstitutional,
it seems one would have to define why it is an *unreasonable*
kind of search and seizure. and this distinction might be a
great, prime candidate: because the participant is *unaware*
of the "seizure," there is too great a potential for abuse.

it seems to me many people's fears here boil down to this
fear of the government surveilling them without their knowledge,
of them being denied the right to choose to be in contempt of
court and reject handing over information when presented with
a warrant/subpoena. (is this a right? is it being broken by surreptitious
surveillance?)

==

I am really amazed that there isn't much case law on wiretaps, which
have been around a long time. at least it is rarely quoted here.
what exactly is a legal wiretap? has anyone challenged the fundamental
authority of the government in making wiretaps in which subjects
are unaware of the metaphorical "search and seizure" going on?

recent Bernstein and Junger cases are going to be fantastic milestones
in our legal system for challenging the cryptographic status quo.
I wonder if cpunks might be interested in challenging the 
wiretap status quo!! it would seem like the first logical step.

the FBI has often said they don't want to expand their powers in 
wiretapping areas. but are those powers they have right now legitimate?
if they are not, as many here seem to argue, 
then they ought to be challenged in court ala the one-man-guerilla
attacks like Bernstein and Junger. (any takers? <g>)

anyway, I propose that cpunks try to collect all the minutia in the
case law about wiretaps and try to make the case that wiretapping
that the FBI has enjoyed is itself not legitimate, and therefore
any extension of it (such as Clipper) is also illegitimate.

==

more and more I wonder if this is one of the key differences between
libertarian and spook bureacrat's views on GAK, key escrow, key
recovery (let us put it all under the heading "key access"). the
spooks seem to emphasize that they should be able to get access
to communications without giving anyone the opportunity to refuse
or possibly even know about such access. libertarians seem to
insist that this is a violation of privacy and due process etc.

I think there may be a legitimate argument here that might have
legal merit that a reasonable "search and seizure" ought to
involve the knowledge of the participant, and that unreasonable
searches and seizures often do not. hence, wiretapping without
suspect agreement may be illegal? (in all the other ways that
evidence is obtained through warrants/subpoenas, one needs
the cooperation of the suspect?)  obviously the government would
argue that the cooperation of the suspect is irrelevant and
impossible. what exactly does it mean to "present a warrant"
or subpoena? is there a right to refuse such a subpoena similar
to the way one is guaranteed freedom from self-incrimination?

On Fri, 4 Oct 1996, Vladimir Z. Nuri wrote:

[...]

> he made the distinction of "search and seizure" made with
> the knowledge of the person involved, and "search and
> seizure" such as wiretapping done without the knowledge
> of the person surveilled.
> 
> if one were to try to say that wiretapping was unconstitutional,
> it seems one would have to define why it is an *unreasonable*
> kind of search and seizure. and this distinction might be a
> great, prime candidate: because the participant is *unaware*
> of the "seizure," there is too great a potential for abuse.

This is hardly news.  An old and inconsequential distinction
unfortunately.

> it seems to me many people's fears here boil down to this
> fear of the government surveilling them without their knowledge,
> of them being denied the right to choose to be in contempt of
> court and reject handing over information when presented with
> a warrant/subpoena. (is this a right? is it being broken by surreptitious
> surveillance?)

"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 am really amazed that there isn't much case law on wiretaps, which
> have been around a long time. at least it is rarely quoted here.
> what exactly is a legal wiretap? has anyone challenged the fundamental
> authority of the government in making wiretaps in which subjects
> are unaware of the metaphorical "search and seizure" going on?

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.

> recent Bernstein and Junger cases are going to be fantastic milestones
> in our legal system for challenging the cryptographic status quo.
> I wonder if cpunks might be interested in challenging the 
> wiretap status quo!! it would seem like the first logical step.

Tried and failed decades ago.

> the FBI has often said they don't want to expand their powers in 
> wiretapping areas. but are those powers they have right now legitimate?
> if they are not, as many here seem to argue, 
> then they ought to be challenged in court ala the one-man-guerilla
> attacks like Bernstein and Junger. (any takers? <g>)

Again, you're late.  Several years too late.

> anyway, I propose that cpunks try to collect all the minutia in the
> case law about wiretaps and try to make the case that wiretapping
> that the FBI has enjoyed is itself not legitimate, and therefore
> any extension of it (such as Clipper) is also illegitimate.

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.

I propose you go to the library and do your own work for a change.

> ==
> 
> more and more I wonder if this is one of the key differences between
> libertarian and spook bureacrat's views on GAK, key escrow, key
> recovery (let us put it all under the heading "key access"). the
> spooks seem to emphasize that they should be able to get access
> to communications without giving anyone the opportunity to refuse
> or possibly even know about such access. libertarians seem to
> insist that this is a violation of privacy and due process etc.

I wonder what caused you to think this was some kind of novel revelation.

> I think there may be a legitimate argument here that might have
> legal merit that a reasonable "search and seizure" ought to
> involve the knowledge of the participant, and that unreasonable
> searches and seizures often do not. hence, wiretapping without
> suspect agreement may be illegal? (in all the other ways that
> evidence is obtained through warrants/subpoenas, one needs
> the cooperation of the suspect?)  obviously the government would
> argue that the cooperation of the suspect is irrelevant and
> impossible. what exactly does it mean to "present a warrant"
> or subpoena? is there a right to refuse such a subpoena similar
> to the way one is guaranteed freedom from self-incrimination?

I know you think you're being very clever and original, as if somehow you
aquired the skills of a noted constitutional scholar whilest no one was
looking. I also know that you have not bothered to research your own
claims.  I can't decide, however, if this is cleverness on your part in
trying to get someone else to do all your work for you, in which case it's
not working on me, or simple laziness, in which case it's apparent and
unsurprising.

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

[wiretapping involves total secrecy vs. warrants]
>This is hardly news.  An old and inconsequential distinction
>unfortunately.

please elaborate.

>"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.

>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.

>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.

>I propose you go to the library and do your own work for a change.

I propose you try to show some civility in cyberspace for a change.

>I wonder what caused you to think this was some kind of novel revelation.

I wonder why you always revert to sarcasm instead of making
constructive points.

>I know you think you're being very clever and original, as if somehow you
>aquired the skills of a noted constitutional scholar whilest no one was
>looking. I also know that you have not bothered to research your own
>claims.

there are no claims, merely ideas as usual. I am not posting to 
show off my pretentious laywer skills. the cpunks have you for that.

>I can't decide, however, if this is cleverness on your part in
>trying to get someone else to do all your work for you, in which case it's
>not working on me, or simple laziness, in which case it's apparent and
>unsurprising.

"your work"? apparently it is "my work" to research case law involving
wiretapping now? hmmmmm, my job description must've changed again
while I wasn't looking. @#$%%^&* don't you hate it when that happens!!

Unicorn, instead of posting something that is so utterly devoid of
any informational value, and merely tries to invent new and clever
ways of tangentially, scurrilously insulting someone without directly
addressing a single actual point
involved, why don't you do the obvious and use the
post as a leaping off point to show off your own mastery of the
arcania and minutia of our legal system, such as it was intended?
do you really think you are getting reputation brownie points or
something by doing this? hee, hee.

On Sat, 5 Oct 1996, Vladimir Z. Nuri wrote:

> 
> [wiretapping involves total secrecy vs. warrants]
> >This is hardly news.  An old and inconsequential distinction
> >unfortunately.
> 
> please elaborate.

Do your own homework or pay me.

[...]

> >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.

Look at your quote again.  You indicated there was no case law, or that it
never appeared here.  I suppose this is where someone with a real job is
supposed to take hours out of his or her time to type up a 10 page summary
of why you are a complete fool.  Sorry, I'm not biting.

> >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.

I am insulting a lazy poster.  Do your own work for a change.  You
deserved every bit of condescending and (self) pretentious ire I had to
spill.

> >I propose you go to the library and do your own work for a change.
> 
> I propose you try to show some civility in cyberspace for a change.

This from you?  Please.

> >I wonder what caused you to think this was some kind of novel revelation.
> 
> I wonder why you always revert to sarcasm instead of making
> constructive points.

Reason seems to have long since ceased to be useful in your case, "Vlad."

> >I know you think you're being very clever and original, as if somehow you
> >aquired the skills of a noted constitutional scholar whilest no one was
> >looking. I also know that you have not bothered to research your own
> >claims.
> 
> there are no claims, merely ideas as usual. I am not posting to 
> show off my pretentious laywer skills. the cpunks have you for that.

I accept that honor with pride.  As for claims or ideas, I stand
corrected.  I now believe you present neither.

> >I can't decide, however, if this is cleverness on your part in
> >trying to get someone else to do all your work for you, in which case it's
> >not working on me, or simple laziness, in which case it's apparent and
> >unsurprising.
> 
> "your work"? apparently it is "my work" to research case law involving
> wiretapping now? hmmmmm, my job description must've changed again
> while I wasn't looking. @#$%%^&* don't you hate it when that happens!!

It is generally the expectation that he who is presenting a supposed new
and novel idea support it him or herself.  You have failed to do so mostly
because you are content to rely on everyone else to flush out your
"arguments" for you.  I'm sorry if you feel supporting your own claims or
justifing the intellectual expenditures others might make in pursuing an
idea you present is a new facet of your "job description."  The fact is
that your ideas would have never escaped your fingertips if you had spent
a mere ten or twenty minutes bothering to get some background on the
amazingly useless idea you proposed.  That's insulting to everyone here.

> Unicorn, instead of posting something that is so utterly devoid of
> any informational value, and merely tries to invent new and clever
> ways of tangentially, scurrilously insulting someone without directly
> addressing a single actual point
> involved.

How my refusal to spend an hour or more typing in the text of the 30
opinions it would take to finally get you to shut up (probably because
some new lunacy attracted your attention instead) is anything but
reasonable given the total lack of effort on your part to even have a
clue about the topic on which you propose to lead, is beyond me.  In case
you missed it the first time, my post is utterly devoid of informational
value by design.

> why don't you do the obvious and use the
> post as a leaping off point to show off your own mastery of the
> arcania and minutia of our legal system, such as it was intended?

Because given the topic you have brought up, my using your idea as a
"leaping off point" to demonstrate any legal knowledge would be akin to
factoring the number 6 to demonstrate my mastery of math.

> do you really think you are getting reputation brownie points or
> something by doing this? hee, hee.

No, I think I am destroying your reputation brownie points (if any
existed) as well as those attached to this idiotic thread.

Another poster discussed (quite well) the legal reasons your ideas were
moronic.  I think perhaps he had more time on his hands.

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

For the benefit of recent arrivals on the list who may not be lawyers, let
me assure you there is ample law on the legality of wiretaps.

See generally

http://www.law.miami.edu/~froomkin/articles/clipper.htm


**Benjamin Bradley Froomkin, b. Sept. 13, 1996, 8 lbs 14.5oz 21.5"**
                  **Age two weeks: 9 lbs 12 oz, 23"**
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's hot here.  And humid.

Vladimir Z. Nuri wrote:

[some text deleted]

> I think there may be a legitimate argument here that might have
> legal merit that a reasonable "search and seizure" ought to
> involve the knowledge of the participant, and that unreasonable
> searches and seizures often do not. hence, wiretapping without
> suspect agreement may be illegal? (in all the other ways that
> evidence is obtained through warrants/subpoenas, one needs
> the cooperation of the suspect?)  obviously the government would
> argue that the cooperation of the suspect is irrelevant and
> impossible. what exactly does it mean to "present a warrant"
> or subpoena? is there a right to refuse such a subpoena similar
> to the way one is guaranteed freedom from self-incrimination?

The point is, the govt. already has the info, much as if you had a bunch 
of computers and digiboards or whatever monitoring all your neighbors' 
phone calls.  It's whether they can legally present the info in court to 
put you away or not that matters.  The law tends to move in the 
direction of recent decisions, particularly in saying that the police 
"acted in good faith" in collecting the info, and that they "didn't 
conspire to collect the info deliberately knowing it wasn't legal", etc.

Problem is, the govt. will continue to ease the restrictions on the 
latter argument, since in the former, they *always* act in "good faith".