Re: legality of wiretapping: a "key" distinction

[Black Unicorn <unicorn@schloss.li>]

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