INTERCEPT THIS.

[Aimee Farr]

Somebody offlist flipped my "internet rant generator." I will not stoop to
respond to this snoopy, low-life, lapdog, cog-in-the-wheel directly, (and
the high-and-mighty &^%$#!@ denied me the opportunity). So, please excuse
me....

----
"The issue in this case is clouded and concealed by the very discussion of
it in legalistic terms. What the ancients knew as 'eavesdropping,' we now
call 'electronic surveillance'; but to equate the two is to treat man's
first gunpowder on the same level as the nuclear bomb. Electronic
surveillance is the greatest leveler of human privacy ever known. How most
forms of it can be held 'reasonable' within the Fourth Amendment is a
mystery." --- Justice Douglas, dissenting, United States v. White, 401 US.
745 (1971).
----

A keystroke is not a mere physical action - it is a contemporaneous
reflection of what is going on in your head. It is the contemporaneous
interception of mental processes. I am not just "typing," I am thinking. A
keystroke logger is akin to another recording device that is restricted for
these very reasons: the polygraph.

The ability to compose one's thoughts through writing, in private, should be
an inviolable sanctuary. The law enforcement interest in garnering a
passphrase to decrypt for the most heinous of criminal purposes pales in
comparison to the importance of forever precluding the government from
intruding on the genesis of human achievement at the sacred moment of its
inception: taking your thoughts to the written word.

As always, if they want it, they can come seize it, or intercept it.
Interception and seizure always was about giving the government an
opportunity to "get it." You took a risk by creating and having a document
in your possession for a meaningful length of time - at least SOME length of
time, or by "speaking your mind." Today, we press "SEND." You subjected your
thoughts or words to a meaningful exposure. Now, because of a "passphrase,"
the government would have the act of merely putting a pen to paper to
construct your thoughts require a similar act of courage.

Yes, what you write is subject to seizure. Still, there is an important
distinction.

Surely, some drafts of constitutional provisions ended up in the embers of a
fire, and we will never know the thoughts of the author that were penned and
destroyed in private. To James Madison, a keystroke logger would look like a
"tattletale quill." Had there been "tattletale quills" back then, I wouldn't
be ranting about Scarfo, because we would have ever been afforded the
protections the Constitution. The thoughts leading to the Fourth Amendment
would have never seen parchment. Nor would have The Federalist Papers seen
ink. The Crown would have interloped between the men and their manuscripts.
Do you not realize the nature of this invasion! The government just turned a
man's writing utensil into a wired government informant! How can a fair
construction of the Fourth Amendment subject every American to question the
trustworthiness of their pen? To have your pen as a contemporaneous witness
against yourself?

We must preserve as inviolate what little remains of that same sanctity
between pen and paper that the Founders had when they framed their thoughts.
The sanctity I speak of is that "sense of security" in knowing that you have
the opportunity, no matter how brief or illusory, to consider your words
before rendering them available to the senses of others. That is the
wellspring of thought. Furthermore, are you not entitled to the same
forgiving fire James Madison had, should you be able to fairly avail
yourself of it?

Think of the great thought that would never have been -- but for handy
fires, and that _moment_ of sanctum when a man's pen hits his paper. At that
moment, the historic* meanings of the Fourth and Fifth Amendments don't "run
almost into each other," as in Boyd v. United States, 116 U.S. 616 (1886),
they collide.

"Ways may some day be developed by which the Government, without removing
papers from secret drawers can reproduce them in court, and by which it will
be enabled to expose to a jury the most intimate conveyances of the home.
Advances in the psychic and related sciences may bring means of exploring
unexpressed beliefs, thoughts and emotions.... -- Justice Brandeis,
dissenting, Olmstead v. United States, 277 U.S. 438 (1928).

~Aimee

*Emphasis on historic.