The (U.S.) ban on wiretapping without judicial permission is rooted
in a Supreme Court decision, Katz v. United States, 389 U.S. 347
(1967) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=389&invol=347)
which held that a wiretap is a search which thus required a warrant.
I don't think there's ever been any doubt that seizing a stored message required a warrant. But in an old case (OLMSTEAD v. U.S., 277 U.S. 438 (1928)) the Court had held that the Fourth Amendment only protected material things, and therefore *not* conversations monitored via a wiretap. That decision was overturned in Katz.
Well, there could have been one other slight source of doubt, namely the theory that communications "with no expectation of privacy" are not private and intercepting them is free-for-all. Talking out loud in a public place, for instance. US laws going back to 1934 if not earlier made it clear that most wired transmissions were to be considered private.
Wireless is a horse of a different color. IANAL but the last time I looked, there was no federal law against intercepting most wireless signals, but you were (generally) not allowed to disclose the contents to anyone else. I don't know what that means in practice. Perhaps I can act on the information, so long as I don't "disclose" it? Plus there is a welter of state laws. And cellphone transmissions are a more- protected special case.
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In the communication industry (e.g. for tariff purposes) the usual test for whether something is a "stored" message is whether the storage adds value to the service. The delay that occurs in a store-and-forward network does not make it a "storage" service. This criterion has been very closely examined in connection with fly-by-night voice-over-IP telephony schemes, most of which are competitive only if they don't have to pay the tariffs that phone companies have to pay. The tariffs distinguish IP from telephony on the theory that IP is used to access "stored" data -- but if IP is used for telephony that theory goes out the window. Big mess.
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The reason why wiretap warrants are (were?) harder to get is because they are insidious: If somebody comes to my house to sieze my papers I generally know about it. But if somebody siezes my bits while they are entrusted to some third party's wire, how am I supposed to know?
For this reason and others, I very much doubt that Congress intended different treatment for -- data in transit on a wire versus -- data in transit in a store-and-forward switch. The intention, I assume, was a distinction between data in transit and data truly stored at the endpoint, under control of the end user.
We should want the standards for siezing data in transit to be just as high as the standards for a "sneak and peek" search warrant, considerably higher than for an ordinary above-board search warrant.
Since the Konop case didn't involve warrants or government searches, I doubt anything that judge says will have much effect on this issue. I think we should be much more worried about the USA PATRIOT act and the son-of-PATRIOT act that Ashcroft's aides say isn't being drafted.
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