[4523] in cryptography@c2.net mail archive
Re: Day 2 of the CJ vs. Jeff Gordon show
daemon@ATHENA.MIT.EDU (Michael Froomkin - U.Miami School )
Thu Apr 15 09:56:11 1999
Date: Wed, 14 Apr 1999 23:05:21 -0400 (EDT)
From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
To: John Gilmore <gnu@toad.com>
Cc: jya@pipeline.com, declan@well.com, ann_harrison@cw.com,
cryptography@c2.net, cypherpunks@toad.com
In-Reply-To: <199904140808.BAA21686@toad.com>
you rang?
On Wed, 14 Apr 1999, John Gilmore wrote:
[...]
> Carl Johnson's house and seized computers from it. An interesting bit
> of side news is that apparently you can't challenge the
> Constitutionality of a search done overseas -- even though US
This is true when the foreigners do the search. It may not be true
if US agents do it unless authorized by foreigners. [Lawyers call it
the "does the constitution follow the flag" problem.] It makes sense,
actually: their home, their rules. It would be absurd to require a
foreign government to get a warrant from a US court to search a foreign
property that happened to have a US citizen in it. But if the search was
legal there, why exclude the evidence for lack of a US warrant. Ditto for
a confession obtained without duress but also without a Miranda warning.
Why should French cops have to read you your Miranda rights when they
don't apply in France?
Yes, it can be abused. Indeed the claim that the NSA and GCHQ have a
you-spy-on-mine-I'll spy-on-=yours deal is, if true, an example of the
family of abuse. But it may still be the best rule we can fashion.
> prosecutors are introducing the results of the search as evidence to
> convict you with in the US. Seemed like a big loophole to me. Any
> lawyers care to comment?
>
Actually, that's nothing. You can't complain if US agents kidnap you
abroad (armed with a valid US warrant) and drag you home in violation of
foreign law, unless there happens to be a treaty with the foreign country
specifically and explicitly banning such state-sponsored kidnapping.
United States v. Alvarez-Machain, 112 S. Ct. 2188 (1992). Based on a
historic loophole of long standing...
Well, you can't complain in your defense to the criminal case. If
acquitted, you have a darn good civil case....Mexican Doctor Files $20
Million Suit Against U.S. Drug Agents, UPI, July 9, 1993
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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