Re: legality of wiretapping: a "key" distinction

[jim bell <jimbell@pacifier.com>]

At 01:04 PM 10/4/96 -0700, Vladimir Z. Nuri wrote:
>
>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.

I've been saying this for years!  I think that one of the most telling 
arguments is that the main (if not the only!) reason that wiretaps are kept 
secret is that, for obvious technical reasons, they CAN BE kept secret!   
Pardon me for being facetious, but I see no principle in the Constitution 
that states "Anything the government can get away with is okay," so I think 
it's predictable that wiretap law would be constitutionally defective.  If 
wiretaps had been somehow impossible to accomplish secretly, nobody today 
would believe that secrecy was somehow allowable! 

It didn't have to be this way.  The SC might simply have said that wiretap 
warrants must follow the same rules all other warrants followed, meaning 
that the target is informed of the tap when it is placed.  Sure, the police 
would howl, complaining that they'll never hear anything "useful" if the 
target is informed, but then again, the Constitution cannot guarantee that 
any particular search would achieve its intended results.

Are police entitled to use thumbscrews if simply asking a question won't get 
the "right" answer"?  I don't think so.  


>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?)

One thing that was very important to those who wrote the US Constitution was 
the sanctity of contracts.  The idea was, presumably, that any citizen 
should be entitled to enter into agreements with others without fearing that 
the terms of those contracts would be abused/changed by the government.  
(assuming those terms were legal.)  By its very nature, a (secret) wiretap 
warrant violates the right of a person to CHALLENGE the warrant, and it also 
requires the other person (telephone company?) to break what is or should be 
an implied right of user to private communications.


>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?

I think it's really very simple.  Wiretaps in the US were illegal until 
1968.  Congress had repeatedly refused to authorize them, although they were 
done anyway but were not admissible in court. (proving that the same kind of 
people who will tell you wiretaps are "reasonable" apparently think it's 
"reasonable" to break the law for their own goals...)   1968 was a time of 
great (and well-justified!) turmoil in the country.   And prior to and 
subsequent to 1968, until about 1983, telephone service (both local and LD) 
were monopolized, so the only entity which was aware of those wiretaps and 
could thus challenge them had a non-arm's-length relationship with the US 
Government.  Even subsequent to 1983, local service is still monopolized, 
although that will shortly change.  (This monopoly status has helped confuse 
the issue, because being a monoply a telephone company must deal with the 
government and is dependant on it, and morever a customer is not entitled to 
"shop around" for a more trustworthy source of phone service.)

As I understand it, there is a principle in law that all affected parties to 
a dispute must be included in a proceeding. (To ensure that each can protect 
his own rights.)  Obviously, targets of wiretaps have not been informed, and 
thus can't possibly have been included.  There is, therefore, no reason to 
believe that the rights of wiretap-targets have been protected, and further 
it seems apparent that any relevant precedents which have been set in the 
wiretap era cannot be considered Constitutionally valid.  Of course, some 
lawyers (who have been trained to accept the status quo with little or no 
challenge) will disagree!  However, those same lawyers would have accepted 
the Dred Scott decision without question, Plessy vs. Fergusen, etc.

While I'm sure that I will be corrected if this is wrong, somehow I doubt 
whether there has EVER been a "before-the-fact", full challenge of a wiretap 
order _including_ representation for the target of the wiretap.  Further, I 
also doubt whether there is frequently ANY SORT of challenge to a wiretap  
by a telephone company, even when the target was not informed.  Quite 
simply, the telephone company does not consider itself to be in the business 
of protecting the rights of its customers!  And without real challenges, 
there can be no presumed validity to such warrants.
 
>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.

Since it has always been legal to use encryption (in the US), they're really 
not "challenging the cryptographic status quo."  Rather, they are trying 
prevent the "cryptographic status quo" from being CHANGED to match the 
desires of the government.   (naturally, the government tries to 
misrepresent this...)    The government uses phrases like, "preserving 
law-enforcement access," implying that they're somehow maintaining the 
status quo, when they're actually trying to change it.  What's changing now 
(for engineering reasons) is the practicality of encryption (actually, the 
expense!), not the legality. The government wants to change the law, in 
order to make illegal what was previously impractical.


>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>)

I don't know about you, but somehow I'm past the idea that it's possible to 
reliably get unbiased justice in court.  Know what I mean?

Even so, if there's one thing we need, it's a challenge to ensure that the 
"fully-caved-in" telephone companies precedent doesn't get automatically 
assumed valid for ISP wiretap orders.

>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.

I like the first part of your comment, but let there be no illusion that 
failure to get the government thugs to admit that wiretapping is 
unconstitutional (per se or as done) somehow means that Clipper is legitimate.


>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.

However, one doesn't have to be a libertarian to conclude that wiretap law 
is disjoint from the rest of search-warrant precedent.  Fortunately, the 
advent of good encryption should (if it is allowed to) make wiretap law 
irrelevant.  In a sense, technology will be fixing a legal error.  (This fix 
would have been far quicker and cheaper if it had been accomplished using 
firearms, but that's another story.)


>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?) 

Well, they don't technically need the "cooperation," but they are still 
required to inform the target.  For example, if they get a search warrant 
for a house that happens to be empty when they show up, they are obligated 
to leave notice of the search and lists of what was taken.  Apparently they 
need to do this EVEN IF they would have been able to get into the house 
surreptitiously without leaving any trace.  


Jim Bell
jimbell@pacifier.com