Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Will Rodger]

John says:

Next time, before disagreeing with someone:
  a) Please read what he actually wrote, and
  b) Don't quote snippets out of context.
Three sentences later, at the end of the paragraph that
began as quoted above, I explicitly pointed out that
cellphone transmissions are a more-protected special case.
Well, I did the first and, I thought, avoided the second. I misunderstood 
what you meant. Sorry.

Will

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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period(was Re: BNA's Internet Law News (ILN) - 2/27/03)

[John S. Denker]

Will Rodger wrote:

John says:

> 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.
No longer, if it ever was. It's a crime, as evidenced by the wireless
scandal a few years back when some Democrat partisan intercepted
communications of Republican leadership in Florida, then talked. The
simple act of interception was illegal.


Next time, before disagreeing with someone:
  a) Please read what he actually wrote, and
  b) Don't quote snippets out of context.
Three sentences later, at the end of the paragraph that
began as quoted above, I explicitly pointed out that
cellphone transmissions are a more-protected special case. 


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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period(was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Will Rodger]

John says:

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.
No longer, if it ever was. It's a crime, as evidenced by the wireless 
scandal a few years back when some Democrat partisan intercepted 
communications of Republican leadership in Florida, then talked. The simple 
act of interception was illegal.

Will Rodger



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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period(was Re: BNA's Internet Law News (ILN) - 2/27/03)

[John S. Denker]

Steven M. Bellovin wrote:
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.
===

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.
===

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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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Tim Dierks]

At 02:30 PM 3/5/2003 -0500, Steven M. Bellovin wrote:
>From: Somebody
>
>Technically, since their signal speed is slower than light, even
>transmission lines act as storage devices.
>
>Wire tapping is now legal.
The crucial difference, from a law enforcement perspective, is how hard
it is to get the requisite court order.  A stored message order is
relatively easy; a wiretap order is very hard.  Note that this
distinction is primarily statutory, not (as far as I know)
constitutional.
Furthermore, it's apparently not illegal for a non-governmental actor to 
retrieve stored information which they have access to, although it might be 
illegal for them to wiretap a communication even if they had access to the 
physical medium over which it travels.

I disagree with "Somebody"'s claim; I don't think that claim would go 
anywhere in court, since a transmission clearly falls under the category of 
"wire communication", and it's clear that transmission lines are the very 
entities the wiretap act has always been intended to protect, so Congress' 
intent is quite clear, regardless of any argument about "storage".

 - Tim



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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Steven M. Bellovin]

In message <[EMAIL PROTECTED]>, "R. A. Hettinga" wr
ites:
>
>--- begin forwarded text
>
>
>Status: RO
>From: Somebody
>To: "R. A. Hettinga" <[EMAIL PROTECTED]>
>Subject: Re: Wiretap Act Does Not Cover Message 'in Storage' For Short   Perio
>d (was Re: BNA's Internet Law News (ILN) - 2/27/03)
>Date: Sun, 2 Mar 2003 14:09:05 -0500
>
>Bob,
>
>Technically, since their signal speed is slower than light, even
>transmission lines act as storage devices.
>
>Wire tapping is now legal.
>

No, that's not waht the decision means.  Access to stored messages also 
requires court permission.  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.

The crucial difference, from a law enforcement perspective, is how hard 
it is to get the requisite court order.  A stored message order is 
relatively easy; a wiretap order is very hard.  Note that this 
distinction is primarily statutory, not (as far as I know) 
constitutional.  

--Steve Bellovin, http://www.research.att.com/~smb (me)
http://www.wilyhacker.com (2nd edition of "Firewalls" book)



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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[R. A. Hettinga]

--- begin forwarded text


Status: RO
From: Somebody
To: "R. A. Hettinga" <[EMAIL PROTECTED]>
Subject: Re: Wiretap Act Does Not Cover Message 'in Storage' For Short   Period (was 
Re: BNA's Internet Law News (ILN) - 2/27/03)
Date: Sun, 2 Mar 2003 14:09:05 -0500

Bob,

Technically, since their signal speed is slower than light, even
transmission lines act as storage devices.

Wire tapping is now legal.



- Original Message -
From: "R. A. Hettinga" <[EMAIL PROTECTED]>
To: Clippable <[EMAIL PROTECTED]>
Sent: Sunday, March 02, 2003 3:04 PM
Subject: Re: Wiretap Act Does Not Cover Message 'in Storage' For Short
Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)


>
> --- begin forwarded text
>
>
> Status: RO
> Date: Sun, 02 Mar 2003 14:27:00 -0500
> To: Tim Dierks <[EMAIL PROTECTED]>, "R. A. Hettinga" <[EMAIL PROTECTED]>,
>[EMAIL PROTECTED]
> From: "Ronald L. Rivest" <[EMAIL PROTECTED]>
> Subject: Re: Wiretap Act Does Not Cover Message 'in Storage' For Short
>   Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)
>
>
> Yes, I was amazed at this ruling as well.
>
> This ruling seems to fly in the face of the likely intent of
> Congress when it passed Wiretap Act.
>
> If things continue in this direction, we will soon have
> rulings and regulations that say:
>
>  -- Carriers must put all calls in storage for a minimum
> period of time, sufficient to allow wiretapping.
> (Indeed, regulation may not be necessary, as digitization and
>  buffering of communications is common practice; the
>  transient use of storage to effect communications
>  efficiency and reliability should not provide a wiretap
>  loophole.)
>
>  -- Wiretapping is OK for any phone calls that are routed
> through a satellite.
>
>  -- It is OK for the government to house soldiers in your
> house, as long as there is even the tiniest opening somewhere in
> your house (e.g. a window open, or a chimney flue)
> so that "inside" and "outside" connect.
>
>  -- Etc.
>
> I can also see a market developing for "storage-free" communications
> carriers.  What happens when you inquire of your carrier as to
> whether it can provide such a guarantee or option?
>
>  Cheers,
>  Ron
>
> At 09:42 PM 3/1/2003, Tim Dierks wrote:
> >At 01:39 PM 2/27/2003 -0500, R. A. Hettinga wrote:
> >>At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:
> >> > WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
> >> > PERIOD
> >> > BNA's Electronic Commerce & Law Report reports that a
> >> > federal court in Massachusetts has ruled that the federal
> >> > Wiretap Act does not prohibit the improper acquisition of
> >> > electronic communications that were "in storage" no matter
> >> > how ephemeral that storage may be. The court relied on Konop
> >> > v. Hawaiian Airlines Inc., which held that no Wiretap Act
> >> > violation occurs when an electronic communication is
> >> > accessed while in storage, "even if the interception takes
> >> > place during a nanosecond 'juncture' of storage along the
> >> > path of transmission."  Case name is U.S. v. Councilman.
> >> > Article at
> >> > <http://pubs.bna.com/ip/BNA/eip.nsf/is/a0a6m6y1k8>
> >> > For a free trial to source of this story, visit
> >> > http://web.bna.com/products/ip/eplr.htm
> >
> >This would seem to imply to me that the wiretap act does not apply to any
> >normal telephone conversation which is carried at any point in its
transit
> >by an electronic switch, including all cell phone calls and nearly all
> >wireline calls, since any such switch places the data of the ongoing call
> >in "storage" for a tiny fraction of a second.
> >
> >  - Tim
> >
> >
> >
> >-
> >The Cryptography Mailing List
> >Unsubscribe by sending "unsubscribe cryptography" to
> >[EMAIL PROTECTED]
>
> Ronald L. Rivest
> Room 324, 200 Technology Square, Cambridge MA 02139
> Tel 617-253-5880, Fax 617-258-9738, Email <[EMAIL PROTECTED]>
>
> --- end forwarded text
>
>
> --
> -
> R. A. Hettinga 
> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
> 44 Farquhar Street, Boston, MA 02131 USA
> "... however it may d

Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Ronald L. Rivest]

Yes, I was amazed at this ruling as well.

This ruling seems to fly in the face of the likely intent of
Congress when it passed Wiretap Act.
If things continue in this direction, we will soon have
rulings and regulations that say:
-- Carriers must put all calls in storage for a minimum
   period of time, sufficient to allow wiretapping.
   (Indeed, regulation may not be necessary, as digitization and
buffering of communications is common practice; the
transient use of storage to effect communications
efficiency and reliability should not provide a wiretap
loophole.)
-- Wiretapping is OK for any phone calls that are routed
   through a satellite.
-- It is OK for the government to house soldiers in your
   house, as long as there is even the tiniest opening somewhere in
   your house (e.g. a window open, or a chimney flue)
   so that "inside" and "outside" connect.
-- Etc.

I can also see a market developing for "storage-free" communications
carriers.  What happens when you inquire of your carrier as to
whether it can provide such a guarantee or option?
Cheers,
Ron
At 09:42 PM 3/1/2003, Tim Dierks wrote:
At 01:39 PM 2/27/2003 -0500, R. A. Hettinga wrote:
At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:
> WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
> PERIOD
> BNA's Electronic Commerce & Law Report reports that a
> federal court in Massachusetts has ruled that the federal
> Wiretap Act does not prohibit the improper acquisition of
> electronic communications that were "in storage" no matter
> how ephemeral that storage may be. The court relied on Konop
> v. Hawaiian Airlines Inc., which held that no Wiretap Act
> violation occurs when an electronic communication is
> accessed while in storage, "even if the interception takes
> place during a nanosecond 'juncture' of storage along the
> path of transmission."  Case name is U.S. v. Councilman.
> Article at
> 
> For a free trial to source of this story, visit
> http://web.bna.com/products/ip/eplr.htm
This would seem to imply to me that the wiretap act does not apply to any 
normal telephone conversation which is carried at any point in its transit 
by an electronic switch, including all cell phone calls and nearly all 
wireline calls, since any such switch places the data of the ongoing call 
in "storage" for a tiny fraction of a second.

 - Tim



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Ronald L. Rivest
Room 324, 200 Technology Square, Cambridge MA 02139
Tel 617-253-5880, Fax 617-258-9738, Email <[EMAIL PROTECTED]>


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Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Tim Dierks]

At 01:39 PM 2/27/2003 -0500, R. A. Hettinga wrote:
At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:
> WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
> PERIOD
> BNA's Electronic Commerce & Law Report reports that a
> federal court in Massachusetts has ruled that the federal
> Wiretap Act does not prohibit the improper acquisition of
> electronic communications that were "in storage" no matter
> how ephemeral that storage may be. The court relied on Konop
> v. Hawaiian Airlines Inc., which held that no Wiretap Act
> violation occurs when an electronic communication is
> accessed while in storage, "even if the interception takes
> place during a nanosecond 'juncture' of storage along the
> path of transmission."  Case name is U.S. v. Councilman.
> Article at
> 
> For a free trial to source of this story, visit
> http://web.bna.com/products/ip/eplr.htm
This would seem to imply to me that the wiretap act does not apply to any 
normal telephone conversation which is carried at any point in its transit 
by an electronic switch, including all cell phone calls and nearly all 
wireline calls, since any such switch places the data of the ongoing call 
in "storage" for a tiny fraction of a second.

 - Tim



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Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[R. A. Hettinga]

At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:


> WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
> PERIOD
> BNA's Electronic Commerce & Law Report reports that a
> federal court in Massachusetts has ruled that the federal
> Wiretap Act does not prohibit the improper acquisition of
> electronic communications that were "in storage" no matter
> how ephemeral that storage may be. The court relied on Konop
> v. Hawaiian Airlines Inc., which held that no Wiretap Act
> violation occurs when an electronic communication is
> accessed while in storage, "even if the interception takes
> place during a nanosecond 'juncture' of storage along the
> path of transmission."  Case name is U.S. v. Councilman.
> Article at
> 
> For a free trial to source of this story, visit
> http://web.bna.com/products/ip/eplr.htm

-- 
-
R. A. Hettinga 
The Internet Bearer Underwriting Corporation 
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
-- 
-
R. A. Hettinga 
The Internet Bearer Underwriting Corporation 
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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