"Lawful access" vs warrants: I found the difference today!

Remember how in the Clipper debate, the government insisted on using
the term "lawful access" when talking about what the government had to
do to get keys out?  They implied it meant a warrant issued by a
judge, but actually the proposed rules said any "lawful access" would
do.  That phrase kept reappearing in government proposals.

I've been looking for years in the laws to find what secret loophole
they've been trying to protect.  Today I ran across it!

It's Executive Order 12333, signed by our favorite senile president,
Ronald Reagan, in 1981.  It says:

    2.5 Attorney General Approval.  The Attorney General hereby is
    delegated the power to approve the use for intelligence purposes,
    within the United States or against a United States person abroad,
    of any technique for which a warrant would be required if
    undertaken for law enforcement purposes, provided that such
    techniques shall not be undertaken unless the Attorney General has
    determined in each case that there is probable cause to believe
    that the technique is directed against a foreign power or an agent
    of a foreign power. Electronic surveillance, as defined in the
    Foreign Intelligence Surveillance Act of 1978, shall be conducted
    in accordance with that Act, as well as this Order.

In other words, if the Attorney General claims that someone is an
agent of a foreign power, no warrants are needed; the target has no
Constitutional rights any more:

    Fourth Amendment

    The right of the people to be secure in their persons, houses,
    papers, and effects, against unreasonable searches and seizures,
    shall not be violated, and no warrants shall issue, but upon
    probable cause, supported by oath or affirmation, and particularly
    describing the place to be searched, and the persons or things to
    be seized.

You will recall that the Attorney General made exactly this claim
about Martin Luther King (that he was an agent of a foreign power), to
justify the years of FBI surveillance.  For all we know, they have
been claiming that anyone who advocates crypto legalization must be
an agent of a foreign power.  It really wouldn't surprise me.

We shouldn't stop looking for more loopholes -- they may have several --
but I think this is the big one.

	John

At 01:43 PM 4/19/98 -0700, John Gilmore gnu@toad.com wrote:
>It's Executive Order 12333, signed by our favorite senile president,
>Ronald Reagan, in 1981.  It says:
Reagan wasn't senile yet in 81.  :-)  But yes, it's scary.

>In other words, if the Attorney General claims that someone is an
>agent of a foreign power, no warrants are needed; the target has no
>Constitutional rights any more:
...
>You will recall that the Attorney General made exactly this claim
>about Martin Luther King (that he was an agent of a foreign power), to
>justify the years of FBI surveillance.  For all we know, they have
>been claiming that anyone who advocates crypto legalization must be
>an agent of a foreign power.  It really wouldn't surprise me.

Even though there basically aren't any foreign Commies left any more,
there's always The Pope, and Zionism, and Foreign Drug Cartels, and 
foreign embassies*, and foreign-based MultiNational Corporations, 
and people with accounts in Swiss banks or Anguillan computers.  
Power isn't just for governments any more.

Anarchists distinctly don't work for foreign powers, but it's
close enough for government work.

And more importantly, if by Executive Order, the President
claims that granting the executive branch "access"
to things makes it "lawful", then nobody's safe from fiat law.

~~~
* If they clue in to Elgoland and Vargaland, some of us could
be in Big Trouble :-)
~~~
				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
PGP Fingerprint D454 E202 CBC8 40BF  3C85 B884 0ABE 4639

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In <3.0.5.32.19980419144630.0084d100@popd.ix.netcom.com>, on 04/19/98 
   at 02:46 PM, Bill Stewart <bill.stewart@pobox.com> said:

>And more importantly, if by Executive Order, the President
>claims that granting the executive branch "access"
>to things makes it "lawful", then nobody's safe from fiat law.

We haven't been safe from Royal^H^H^H^H^H Presidential Decree in a very
long time (pre Franklin "Dictator for Life" Roosevelt).


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Bill Stewart wrote:

| Even though there basically aren't any foreign Commies left any more,
| there's always The Pope, and Zionism, and Foreign Drug Cartels, and 
| foreign embassies*, and foreign-based MultiNational Corporations, 
| and people with accounts in Swiss banks or Anguillan computers.  
| Power isn't just for governments any more.

| ~~~
| * If they clue in to Elgoland and Vargaland, some of us could
| be in Big Trouble :-)
| ~~~

	If they had to be logically consistent, then recognizing
agents of Elgoland* as agents of a foreign power would require
recognizing Elgoland as a foriegn power.  That might be worth a few of
our spies.

* I have no idea where or who Elgoland is.

Umm, make that someone else's spies. :)

Adam


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