Re: Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)
In message <E18pfHS-0004zw-00@maynard.mail.mindspring.net>, "R. A. Hettinga" wr ites:
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Status: RO From: Somebody To: "R. A. Hettinga" <rah@shipwright.com> 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) --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to majordomo@wasabisystems.com
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 --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to majordomo@wasabisystems.com
participants (3)
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R. A. Hettinga -
Steven M. Bellovin -
Tim Dierks