Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Steven M. Bellovin]

In message <E18pfHS-0004zw-00 at maynard.mail.mindspring.net>, "R. A. Hettinga" wr
ites:
>
>--- begin forwarded text
>
>
>Status: RO
>From: Somebody
>To: "R. A. Hettinga" <rah at 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)



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