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

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)

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 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'
>

--- 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 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'

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

[Bill Stewart]

That's outrageous - if the explanation is correct,
then either the judge didn't have a clue about modern communication technology,
or the judge did have a clue and was deciding that it's ok for the Feds to
wiretap all IP traffic, including email and Voice Over IP,
all compressed voice, including Voice over ATM and Voice Over Frame,
and any uncompressed digital communications equipment that includes a FIFO,
(at least if you can shove the wiretap in next to the FIFO.)
The VOIP standards have needed to address encryption for a long time;
VOIP over IPSEC is a partial solution, but most people in the industry
aren't really comfortable with the scalability or quality of service issues,
because there's too much layering, performance measurement is hard,
routers that do both tend to run out of CPU, and the field's moving too fast.
(And the Oulu folks just found a bunch of vulnerability in SIP
http://theregister.com/content/55/29507.html .)
At 12:53 PM 02/27/2003 -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
--
-
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'