On Tuesday, August 7, 2001, at 10:24 PM, Harmon Seaver wrote:

Interesting -- where did I get the idea that warrants for "surreptitious entry" were only allowd for cases of national security. I thought Reno was trying to get Congress to pass legalizing this, but was turned down.

First off, there is nothing particularly special about bugging a computer for passwords. Keystroke capture programs and RF bugs have been out for many years. And sneaking into homes and businesses to plant audio and even video bugs has been happening for many years, sometimes with secret warrants, sometimes without. Bugging a computer is not legally any different than bugging a telephone line. (Though if the computer is used as a confessional, or for attorney-client communications...OTOH, these uses are possible with telephones and I haven't heard that phone bugging is illegal. According to my sources ("The Sopranos" 8-)), those doing the bugging are supposed to "not listen" except when putatively criminal acts are being discussed. But as long as we're back on the subject of surreptitious warrants and black bag jobs: I've wondered about two main things vis-a-vis these "black bag jobs" inside the U.S.: 1) Are the secret warrants always revealed eventually, regardless of whether a court case happens or the evidence is introduced? Is it possible that there are N never-revealed secret warrants for every warrant discussed in open testimony? 2) What happens in these breaking-and-entering raids if the homeowner surprises the burglar and kills him? Is a homeowner supposed to somehow know that the person sneaking around his home has a secret warrant signed by a secret judge in a secret courtroom? (Sandy and Black Unicorn will doubtless consider it "bellicose" to say that if I ever find a black-clad ninja rustling around in my house, I expect to treat him as I would treat any other such varmint. A double tap in the center of mass. Probably Black thinks "Mr. Happy Fun Court will not be amused.") So much for the Fourth Amendment, which was designed to protect against precisely this kind of police and state snooping. When a scrap of paper, issued in secret, enables the king's men to wander through a house, the "secure in one's papers and possessions" right has become moot. The fact that judges now issues secret orders in secret hearings is not an excuse--I'm sure King George's men also had pieces of paper from the local rulers. On the bright side, I expect this will cause those who think they may be targets of such snooping and breaking-and-entering to beef up their security, to install video cameras (defeatable, but also countermeasures to these defeats, such as offsite storage, 802.11b transmission to hidden recorders, etc.), and to do more of their sensitive work with laptops which they carry with them at all times. (Today's 3-pound subnotebooks would be perfect, even for a style-conscious Mafia don. Or a PDA, for crypto. Lots of options. I'll leave it to Black Unicorn to explain to us that beefing up security is spoliation.) --Tim May

Tim wrote:

2) What happens in these breaking-and-entering raids if the homeowner surprises the burglar and kills him? Is a homeowner supposed to somehow know that the person sneaking around his home has a secret warrant signed by a secret judge in a secret courtroom?

I agree with Dr. Evil about the unlikelihood of it ever happening, but if it did, I think the intruder is toast. In California, there is the presumption that anyone in your house (at least after dark, though I'd have to research that) is there with the intent of causing death or great bodily harm. He doesn't have to do anything overt like raise a crowbar. So you can just shoot first and ask questions later. Having said that, that is a rebutable presumption. If it can be shown that you believed or had reason to believe the intruder was, in fact, some flavor of cop, you cannot rely on the fear-of-death-or-great-bodily-harm presumption. For example, if he raised his hands and you heard him say, "Don't shoot, I'm an FBI agent," you might lose the benefit of the presumption. (You DID hear him say it, right?) In any event, someone will probably back-shoot you then or later, so the legal aspects may be academic. When the federal government can burn to death over 80 innocent Americans (22 of them children) in broad daylight on national television and skate, I don't think there is much they can do and not get away with it. S a n d y

Black Unicorn wrote:

I didn't realize any states but Virginia still held this old "burglary" definition. Are you certain that's current law?

No, but I'm about to leave town on business so I won't be looking it up. My recollection is that California law actually IMPROVED from the viewpoint of the defender. Prior to a few years ago, you had to make some showing of fear of great bodily harm or death before you could shoot an intruder. The law was changed to make it presumptive that someone in your house was there for those reasons. Having said that, I'm not sure if the night vs day distinction was in the new law or just what I recall from law school. :'D S a n d y

On Wed, 8 Aug 2001, Black Unicorn wrote:

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I agree with Dr. Evil about the unlikelihood of it ever happening, but if it did, I think the intruder is toast. In California, there is the presumption that anyone in your house (at least after dark, though I'd have to research that) is there with the intent of causing death or great bodily harm. He doesn't have to do anything overt like raise a crowbar. So you can just shoot first and ask questions later.

I didn't realize any states but Virginia still held this old "burglary" definition. Are you certain that's current law?

IIRC, last time I wandered through Colorado (I forget the year just now, but between '87 and '92 I think) there was a lot of public debate regarding the recently passed "make my day" law, which basically said the same thing. I remember being advised in Kansas that you couldn't just shoot someone in your house -- unless you were in a room that had no exit other than the one blocked by the person you were shooting. The presumption was that as long as you still had some kind of exit where you could run away, shooting was not necessary. And shooting in the back sort of queered the presumption that you were in fear for your life, too: If the intruder was not advancing on you, shooting was considered unnecessary. As I understand the situation in California, I think Tim is right; an intruder in your home is presumed to be there for nefarious purposes, period, and shooting is presumed self-defense. Bear

This discussion has touched on a variety of topics, some of them at cross purposes. If you catch one cop in black ninja gear inside your house, and shoot him, at least in California, you'll probably have legitimate self-defense claims, and if he did yell "Police", well, dead men tell no tales. Shooting a blue-uniformed cop inside your house will be much tougher to get away with, even though it's legally not particularly difficult. But it's extemely unlikely the cops would be doing a legally-authorized black-bag job with just one person - much more likely they'd have two or more, because sneaking into a Mafioso's house alone is dangerous, and as Dr. Evil points out, they're going to try very hard to make sure you're not home. This will probably include knocking on your door under some pretext, because if you *are* home, they'd much rather have you know that they're watching you than that they're trying to sneak in and black-bag your computer. And it'll probably involve having lookouts outside to radio the inside man with a "Cheese it, the Mafia!" warning if you show up at an inopportune time. Of course, if you shoot multiple cops in black ninja gear outside your house, even if they're engaged in a military assault, it does tend to annoy the rest of them leading to unfortunate consequences, even if you're doing so purely in self-defense. At 10:26 AM 08/09/2001 -0700, Tim May wrote:

(Here in California, several recent cases in Stockton and Bakersfield where they got the wrong house. When the confused occupant moved in a way they didn't like, they shot him dead. "Oops." No murder charges filed against the SWAT members.)

I have had cops break into my house, looking for a neighbor who had used my apartment number on his car registration instead of his, and been the confused occupant acting in a way they didn't expect, but they weren't a SWAT team; it was a 6am service of an arrest warrant, with three cops, and they'd been pounding on the door for about 10 minutes yelling for "Anthony"; I had gotten to bed at 3am, and when enough of the racket got through to wake me up, I initially assumed it was the neighbor's friends or non-friends looking for him, though the word "Police" got used enough I figured I had to go see what was up and staggered down the stairs. Cop was standing in my front hall, and I yelled at him to close the door so the cats wouldn't get out enough times to back him outside before we resolved the other issues. Unfortunately, I was still asleep enough that I didn't check out the warrant, so I don't know if he's a Home Invasion Robber or something else dangerous I should know to avoid, or just was being busted for failing to appear for a DUI charge which is no threat to me....

On Wednesday, August 8, 2001, at 04:03 PM, Dr. Evil wrote:

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I agree with Dr. Evil about the unlikelihood of it ever happening, but if it did, I think the intruder is toast. In California, there is the presumption

Actually, now that I think about it, I think it is essentially impossible for it to ever happen. If it were to happen, it is almost certain that either the breaking-and-entering team or the suspect/homeowner or both would be injured or killed in the ensuing firefight. The FBI knows this. Having agents injured is absolutely unacceptable to them, and having suspects injured or killed is also a highly undesirable outcome for them. You can be sure that during the break-in, they would have a team watching every approach to the house. If somehow or other someone showed up to enter the house during this time, and the FBI couldn't get him distracted in some way, they would just flash their badges and arrest him before he went in.

And now that I think about it some more as well, I wonder if some of the more controversial black bag jobs are subcontracted out to NGOs. The stuff of many a bad B-movie on late night cable, there are still a lot of reasons why gangs would be hired to hit the homes of political dissidents. (Lon Horiuchi still has a bounty on his head by some Aryan groups, and has dropped off the face of the "official" earth, so the Fedz are probably upping their use of Beltway Bandits. I know I would if I were them. I'd hire some Original Gangstas to do my dirty work...through cut-outs, of course, so that if they didn't get zapped by the target, or by the clean-up crew, they couldn't narc out their employers. Like I said, a bad B-movie on Cinemax, probably starring either Lorenzo Lamas or Don "The Dragon.") --Tim May

Sure, their investigation would be compromised (blown) and they would be very unhappy about that, but the alternative is guaranteed to be infinitely worse, so they would do it to cut their losses. So no, you will never walk in and surprise some FBI agents messing with your computer. Don't worry about it.

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that anyone in your house (at least after dark, though I'd have to research that) is there with the intent of causing death or great bodily harm. He doesn't have to do anything overt like raise a crowbar. So you can just shoot first and ask questions later.

Having said that, that is a rebutable presumption. If it can be shown that you believed or had reason to believe the intruder was, in fact, some flavor of cop, you cannot rely on the fear-of-death-or-great-bodily-harm presumption. For example, if he raised his hands and you heard him say, "Don't shoot, I'm an FBI agent," you might lose the benefit of the presumption. (You DID hear him say it, right?)

If a reasonable person found some intruders in his home, and they yelled at him, "I'm an FBI agent!", and started drawing weapons (which is what they would do), would it be reasonable for him to believe them, and comply, or to disbelieve them, and shoot back? He has less than a second (less than the time it takes to say "FBI") to make this decision, btw. I guess that's the question, and we all have our opinions about what the answer is, but ultimately the jury would have to decide what is reasonable, and a lot of their decision would be based on their judgement of the character of the shooter, and their perception of how the FBI handled themselves. Is the suspect a sleaze with a history of violence, or is he a sober, reasonable, cool-headed person with a clean record and documented training about what to do in a self-defence situation? Did the FBI make a plan that took every possible precaution to prevent this from happening, and did they have the right knowledge and equipment to complete the job quickly, or did they go in without proper preparation? The answer to those questions might be the answer to the bigger question. Looking at the bright side of this, the FBI would take extreme precautions to make sure that this situation never comes up, so don't worry about it.

At 01:56 PM 8/8/01 -0700, Sandy Sandfort wrote:

did, I think the intruder is toast. In California, there is the presumption that anyone in your house (at least after dark, though I'd have to research that) is there with the intent of causing death or great bodily harm. He doesn't have to do anything overt like raise a crowbar. So you can just shoot first and ask questions later.

Indeed, I intercepted a report today of a drunk 50+ year old man getting shotgunned once in the chest for mistaking a 70+ year old man's condo for his own. Mr. 50+ died on the scene, of course. Both families are distraught.

At 08:59 AM 8/8/2001 -0700, Tim May wrote:

According to my sources ("The Sopranos" 8-)), those doing the bugging are supposed to "not listen" except when putatively criminal acts are being discussed.

The Sopranos gets it right - the process is called "minimization", and is intended to limit the evidence collected to only that which discloses criminal activity - there are strict rules about how a conversation can be sampled, as the show portrayed. But the agents don't need to follow the rules if they don't intend to ever use the proceeds of the tap in court, or disclose its existence.

1) Are the secret warrants always revealed eventually, regardless of whether a court case happens or the evidence is introduced? Is it possible that there are N never-revealed secret warrants for every warrant discussed in open testimony?

Yes. There is a time limit for when they should be disclosed if they don't lead to a prosecution - that time limit can be extended by a judge, if the agents think they need more time to develop a case. I don't believe the (federal) law allows for taps to go undisclosed forever, but I believe it happens anyway. Since the undisclosed taps aren't likely to be the focus of litigation, there's no effective check on that practice.

2) What happens in these breaking-and-entering raids if the homeowner surprises the burglar and kills him?

Ask Randy Weaver's son, Sam. Whoops, he's dead, like his mom and their dog that barked at the secret police infiltrating their rural property. -- Greg Broiles gbroiles@well.com "We have found and closed the thing you watch us with." -- New Delhi street kids

At 8:59 AM -0700 8/8/01, Tim May wrote:

(Sandy and Black Unicorn will doubtless consider it "bellicose" to say that if I ever find a black-clad ninja rustling around in my house, I expect to treat him as I would treat any other such varmint. A double tap in the center of mass.

You might want to use the Mozambique drill instead- Two to the center mass and one to the head. The drill is used when two shots center mass has no discernable effect, then an aimed shot to the head is implemented. Used of course against an unlawful intruder. Regards, Matt- ************************************************************************** Subscribe to Freematt's Alerts: Pro-Individual Rights Issues Send a blank message to: freematt@coil.com with the words subscribe FA on the subject line. List is private and moderated (7-30 messages per week) Matthew Gaylor, (614) 313-5722 ICQ: 106212065 Archived at http://groups.yahoo.com/group/fa/ **************************************************************************

Harmon wrote:

Interesting -- where did I get the idea that warrants for "surreptitious entry" were only allowd for cases of national security. I thought Reno was trying to get Congress to pass legalizing this, but was turned down.

SURREPTITIOUS ENTRY WARRANTS. Surreptitious entry warrants for silent video surveillance (outside of Title I's "oral, wire or electronic communication") were approved in United States v. Torres, 751 F.2d 875 (7th Cir. 1984). Defendants argued that secret video surveillance was a 1984 Orwellian "telescreen" - and unconstitutional pursuant to the fourth amendment. They lost. Defendants argued the warrant authorizing the search did not satisfy the particularization requirements of the fourth amendment. They lost. The Judge Posner held the warrant satisfied Title III's 2518, and since those requirements "related" to the constitutional requirements, the fourth amendment was satisfied. Courts have adopted Torres. The bottom line on video surveillance is that the government is required to show that "normal investigative techniques...reasonably appear to be unlikely to succeed if tried." Most courts still view video surveillance as outside of the ECPA. Judge Posner said, "There is no right to be let alone while assembling bombs in safe houses." (Later courts extended this to all Title I offenses.) The requirements that emerge from the Torres line are: (1) probable cause in respect to the person and criminal offense; (2) particular description in the court order of the place and things that are to be viewed; (3) minimization of the recording activities not related to the crime under investigation; (4) that normal investigative techniques have failed in the sense that they are unlikely to be successful or appear too dangerous; (5) that the period of the surveillance be limited to that time necessary to achieve the objective of the search or no longer than 30 days. I find Torres analogous, and it is an example of how courts have considered novel technologies and devices under Title I of the ECPA or "Title III." [FN1] GENERAL SEARCH/MINIMIZATION? The minimization requirements of 2518(5) and the fourth amendments prohibition on a "general search" were gutted in Scott v. United States, 436 U.S. 128 (1978), which rejected the view that monitors had to use good faith efforts to minimize the surveillance of non-pertinent conversational content. Scott factors: (1) the nature of the offense; (2) the type and location of the device; (3) the nature of the non-pertinent conversations. 2510 INTERCEPTION? Under Title I analysis the question is if there is an "intercept." See Steve Jackson Games (email wasn't "in flight.") The government basically contends they didn't get anything "in flight," as part of the *contemporaneous* requirement. (And, what if they did? There is no suppression remedy for electronic communications.) SJG is mentioned in Scarfo discussions, and SJG is heavily criticized for it's circumventional nature since the ECPA was meant to extend protection to electronic communications. However, the possibility of the physical seizure of equipment was likely considered by congress in 1986. (Were keystroke loggers?) Furthermore, all the cases cited for the government's proposition in email, voicemail, etc. are basically SJG - things that congress had knowledge of when they wrote the law. Mostly before/after cases. A keystroke logger is a technical circumvention. If upheld, that is a floodgate to eviscerate the protections afforded us under the ECPA and congressional intent by outpacing what the law has had the opportunity to consider. INTERSTATE NEXUS? They also changed Title III with the ECPA to address private carriers and in-house private systems because THEY AFFECT INTERSTATE OR FOREIGN COMMERCE (added clause under ECPA). (Previously, in house systems were exempt from "wire communications," by "common carrier" language, and analyzed under the "oral" provisions.) Today, in a like manner, "electronic communication" includes any transfer.... transmitted by a ....SYSTEM...that _affects interstate or foreign commerce_. See 2510(12). This was within one computer, is that an "electronic communications system" 2510(14)? If so, the government says there is no interstate commerce connection between your keyboard and your computer. The addition of 'interstate commerce' clause is often cited for the proposition that Congress meant to *extend* protection to private systems. (And a whole slew of cases exempting private systems under Title I now have no precedential value.) However, the government cited a passage in the congressional record to the contrary in regard to wire communications, but I'm uncertain of the context of the specific testimony. I don't think the same considerations apply to electronic communications. A STAND-ALONE PIECE OF EQUIPMENT. The Government argues that based on congressional testimony related to wire communications (think telephone and aural), the definition of electronic communications do not include transmissions in one piece of equipment (interstate nexus). The attached phone recorder hardware question, somewhat analogous under wire communications, was settled by the "aural *or other*" addition to ECPA for the definition of "intercept." (Previously, it had to an "aural acquisition" to be an intercept.) Now, Title I treats nonmonitored recording as an interception. Before, courts differed as to whether it was an "aural acquisition" (Turk, 5th Cir.), or a "mere accessory designed to preserve the contents of the communication" (United States v. Harpel, 493 F.2d 346, 350 (10th Cir.1974). I find that analogous as to congressional intent. ~Aimee 1. Title III was 1968. Today we have Title I, Title II & Title III of the ECPA. The former Title III is Title I of the ECPA. Some courts refer to Title I was the Wiretap Act and Title II as the Stored Communications Act. Everybody still calls it "Title III."

At 07:52 PM 8/8/01 -0400, Declan McCullagh wrote:

But he asked for info on the "national security" aspects of the highly classified surveillance technique under seal.

Defense attys don't get to see it. See my wired.com article.

-Declan

On Tue, Aug 07, 2001 at 11:00:25PM -0500, Harmon Seaver wrote:

...

The judge in the Scarfo. case just ordered the feebs to reveal how they got the evidence, full details.

The difference is that now the feds have to trust a judge with no security clearance/experience not to accidentally spill the beans.

On Thu, 9 Aug 2001, Declan McCullagh wrote:

At 10:18 AM 8/9/01 -0700, David Honig wrote:

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The difference is that now the feds have to trust a judge with no security clearance/experience not to accidentally spill the beans.

Huh? Judges accept things under seal all the time. Wiretap orders, for instance. The complaint in the Sklyarov case, for another.

I should hope that if the bugging technology is materially relevant in the legal findings, it would have to be entered into evidence and available for review by defense attorneys etc. Wasn't there a "right to be presented with all evidence against" somewhere in there? Bear

On 9 Aug 2001, at 17:03, Declan McCullagh wrote:

At 01:58 PM 8/9/01 -0700, Ray Dillinger wrote:

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I should hope that if the bugging technology is materially relevant in the legal findings, it would have to be entered into evidence and available for review by defense attorneys etc. Wasn't there a "right to be presented with all evidence against" somewhere in there?

You should read the judge's order, available at epic.org. The report on the tech is not what will be submitted under seal.

-Declan

Worth reading, I particularly liked the quote, "In fact, in reviewing Exhibit I of the government's opposition brief, its contents are in the truest sense 'gobbledygook'." I might actually like this judge! Here's the URL: http://www2.epic.org/crypto/scarfo/order_8_7_01.pdf George