[1440] in cryptography@c2.net mail archive
Re: US Wiretaps Before 1968?
daemon@ATHENA.MIT.EDU (Rick Smith)
Mon Sep 8 16:10:25 1997
In-Reply-To: <199709070153.VAA07673@postal.research.att.com>
Date: Mon, 8 Sep 1997 14:44:18 -0600
To: Steven Bellovin <smb@research.att.com>, Greg Broiles <gbroiles@netbox.com>
From: Rick Smith <smith@securecomputing.com>
Cc: Kent Borg <kentborg@borg.org>, CRYPTOGRAPHY@c2.net
Regarding the legal citation:
> 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>.
It does make interesting reading.
Justice Black's dissent says that "eavesdropping" has not always been
considered "unreasonable search and seizure" by the Court when interpreting
the 4th Amendment, and that such an interpretation is a fairly recent
innovation. It's clear that he believes the Constitution intended to focus
on physical intrusions and manifestations.
I could imagine Black's opinion prevailing if strong cryptography were in
fact readily available. The vulnerability of electronic communications to
disclosure would carry less weight in jurists' minds. Also, Black argues
that toleration of eavesdropping would simplify a rather complex body of
opinion. I've heard that simpler interpretations tend to win out over the
long haul.
If Black's opinion eventually prevailed, I'd be interested to see whether
the Court would consider hacking to be "search and seizure" requiring a
court order. The NRC report hinted that the police and intel agencies may
eventually need to use hacking to supplement eavesdropping, since strong
crypto will reduce eavesdropping's effectiveness. Perhaps the Court will
have to tackle the problem of software operating "on behalf of" others,
like police investigators. If an investigator hacks in to a system, is a
warrant required? Is it the same as the investigator being physically
present?
Perhaps this gets off-topic, but the availability of strong crypto could
really change how search and seizure laws are interpreted. The legal
implications could be rather surprising despite the implications for
propriety, ethics, or morals.
Rick.
smith@securecomputing.com Secure Computing Corporation
"Internet Cryptography" now in bookstores http://www.visi.com/crypto/
