Re: legality of wiretapping: a "key" distinction

[Brian Davis <bdavis@thepoint.net>]

On Wed, 9 Oct 1996, Black Unicorn wrote:
> 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.



Given all the members of so-called "Organized Crime" who have been 
convicted using wiretaps, we must assume that all of their lawyers were 
similarly unimaginative.

Don't tell Don Vito!




> 
> 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
> 
>