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 smb at research.att.com
Wed Mar 5 11:30:54 PST 2003

In message <E18pfHS-0004zw-00 at maynard.mail.mindspring.net>, "R. A. Hettinga" wr
>--- 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
>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) 
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) 

		--Steve Bellovin, http://www.research.att.com/~smb (me)
		http://www.wilyhacker.com (2nd edition of "Firewalls" book)

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