Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period(was Re: BNA's Internet Law News (ILN) - 2/27/03)
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 - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
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 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. - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period
At 4:57 PM -0500 3/5/03, John S. Denker wrote: Tim Dierks wrote: 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/9955106pexact=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. I2ANAL, but I don't think that's clear at all, unless your are talking about specific paragraphs within the Wiretap Act and the Stored Communications Act. 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. The Konop decision specifically talks about government intercepts. See section B7, for example. They even discuss the post 9/11 situation in B6. 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. Add the Railway Labor Act in this case. 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)? There are some who would argue that the simple password protection scheme Knopp used would be a technological protection covered under DMCA. However, the penalty for access to protected material, as opposed to trafficking in technology, is a $2000 fine, which may not seem draconian to an airline. Arnold Reinhold - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)
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 - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period
Tim Dierks wrote: 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/9955106pexact=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)? - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)
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 - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)
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]
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period
* Tim Dierks [EMAIL PROTECTED] [2003-03-02 12:27]: 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. I believe the reason behind the 'in storage' rule is that someone could protect non-transmitted information under the Wiretap Act by transmitting it needlessly. Then they could say that because the information was transmitted, law enforcement now needs the more difficult to obtain wiretap permit just to search the premesis. Example: I heard of a case a while back where an office had fax printouts lying around. Because these fax printouts were not in transmission at the point of interception, there was no need for a wiretap permit. And I think that's reasonable. I'm not sure that your example is correct, because in the cases you mention the wiretap is not actually accessing stored information; it's accessing a transmission (which may be stored elsewhere). However, if the eavesdropper were able to access the data at the point of storage that you describe, then they probably could weasel out of the Wiretap Act. I would not think it's easy to read registers off a microprocessor externally. What annoys me is how the FBI got away with abusing this rule in the Scarfo case. They planted a keyboard logger on Scarfo's keyboard. Then they planted a bug on his serial port. The two bugs compared the keystroke to the data leaving the serial port, and if the keystroke didn't leave the serial port instantaneously, they captured it, and they were able to successfully argue that they didn't intercept a transmission. Obviously email is composed before being sent, so the slimey bastards use this to conduct a disclosure attack on information that would otherwise be protected by the wiretap laws. One might argue that they intercepted a transmission between the keyboard and the computer. Here's how they weasel out of that: Title 3 requires a wiretap warrent to intercept *electronic* transmissions. I believe the FBI uses a keyboard logger that detects the *mechanical* pushing of keys, probably specifically to circumvent the wiretap law. - The Cryptography Mailing List Unsubscribe by sending unsubscribe cryptography to [EMAIL PROTECTED]
