> In order to avoid overreaction to a nth-hand story, I've attempted to > locate some primary sources. > > Konop v. Hawaiian Airlines: > http://laws.lp.findlaw.com/getcase/9th/case/9955106p&exact=1 [US v Councilman:] > http://pacer.mad.uscourts.gov/dc/opinions/ponsor/pdf/councilman2.pdf
Well done. Thanks.
> I'd be interested in any opinions on how this affects the government's > need to get specific wiretap warrants; I don't know if the law which > makes illicit civilian wiretapping illegal is the same code which > governs the government's ability (or lack thereof) to intercept > communications.
0) IANAL. But as to the question of "same code", the answer is clearly "no".
1) As to government-authorized intercepts, see
http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html
which gives a plain-language discussion of at least eight different standards under which some sort of authorization could be obtained.
Also note that neither Konop nor Councilman involved government intercepts, so you can't learn anything about authorized intercepts by studying them. Also note that post-9/11 laws have superseded everything you might previously have known on the subject.
2) As to intercepts by civilians, it's wrong, and it may be punishable under many different theories and standards, including invasion of privacy, copyright infringement, computer trespass, computer vandalism, simple theft of things of value, and who-knows-what else.
3) As to unauthorized intercepts by government agents, in "theory" it is exactly the same as item (2), but in practice your chance of seeing anybody punished for it is comparable to your chance of seeing a State Trooper ticketed for speeding, tailgating, weaving, and failing to signal turns enroute to the donut shop. They're doing God's work, you know; why should mere laws and bills of rights apply to them? About the best you can realistically hope for is the exclusionary rule (illegally siezed evidence can't be used against you) but I wouldn't necessarily count on that.
4) Crypto-related sidelight: I wonder what would have happened if Konop had encrypted his sensitive data. (eBook format or the like. :-) Then could he have used the draconian provisions of the DMCA against his opponent (Hawaiian Airlines)?????
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