[1432] in cryptography@c2.net mail archive
Re: US Wiretaps Before 1968?
daemon@ATHENA.MIT.EDU (Greg Broiles)
Sat Sep 6 19:31:43 1997
Date: Sat, 06 Sep 1997 15:02:45 -0700
To: Steven Bellovin <smb@research.att.com>
From: Greg Broiles <gbroiles@netbox.com>
Cc: Kent Borg <kentborg@borg.org>, CRYPTOGRAPHY@c2.net
In-Reply-To: <199709060210.WAA28553@postal.research.att.com>
At 10:10 PM 9/5/97 -0400, Steven Bellovin wrote:
>The 1968 law was indirectly prompted by a 1967 decision. (This, btw,
>is a great opinion if you're interested in the history of wiretap and
>bugging law. For example, it notes that the first statute against
>eavesdropping was passed by California in 1862.)
Steve's exegesis of this case omitted its name and cite - it's _Katz v.
United States_, 389 US 347 (1967), on the web at
<http://www.findlaw.com/cgi-bin/getcase.pl?court=US&vol=389&invol=347>.
_Katz_ is still the touchstone case for search-and-seizure claims; its
analysis which emphasizes that the 4th Amendment protects people, not
physical places, makes it remarkably adaptable to technological change, and
the lack of "place" in cyberspace from which to derive an old-fashioned
trespass-related "zone of privacy".
>There's a long dissent by Justice Black. I'll leave it to others to
>summarize it.
The short version is - Justice Black prefers to hew closely to the literal
text of the Constitution, and reads the Fourth Amendment to prohibit
unreasonable *searches and seizures* of "persons, houses, papers, and
effect". Since eavesdropping and wiretapping (at least insofar as they
don't include a physical trespass) don't look like a literal "search" or a
"seizure", Black doesn't see a Constitutional basis for forbidding them.
His analysis here is consistent with his rulings in other cases - for
better or for worse, he preferred a literal reading of the Constitution.
--
Greg Broiles | US crypto export control policy in a nutshell:
gbroiles@netbox.com |
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