[IP] more on more on E-mail intercept ruling - good grief!! (fwd from dave at farber.net)

Bill Stewart bill.stewart at pobox.com
Sun Jul 4 01:35:06 PDT 2004

At 10:50 AM 7/2/2004, Roy M. Silvernail wrote:
>Call me cynical (no... go ahead), but if VOIP is found to have no 4th 
>Amendment protection, Congress would first have to agree that this *is* a 
>problem before thay could "fix" it.

While Peter Swire is a much better judge of court behavior than I am (:-)
the key issue in the Councilman case is that the Wiretap Law
differentiates between "aural" communications on wires and
the broader category of "electronic communications",
and "electronic communications" might only be protected on wires,
and not just when it's in storage or in transit on a computer.
(What about wireless transmission?  Is that protected?)
If courts don't think VOIP is "aural", they're way out of line.
That should mean that if you wiretap VOIP calls, you'd better have a warrant.

On a more negative hand, it sounds like the court thinks that
wiretap rules only apply to stuff that's on wire -
do packets that are inside a router get protected,
while it's busy thinking about what wire to put it on next?
Does it matter whether you're intercepting the whole message,
or is the fact that the packet you're intercepting is inside a router
good enough for the court, even though the other packets in the message
might still be on the wires into or out of the router?

>Given the recent track record of legislators vs. privacy, I'm not at all 
>confident Congress would recognize the flaw, much less legislate to extend 
>4th Amendment protection.

The Ashcroftians have been able to con Congress into letting
them have lots of other things they ask for in the name of
"preventing technological change from taking away our current powers",
and every edge case seems to be used as a loophole to grant them
more power, not to restrict what they've got.
It's possible that a Kerry Administration would be less aggressive
about this than the Bush Administration, though it's unlikely
that they'd actually be much better than the Clinton Administration,
would were pretty evil back in their day.

>After all, arent more and more POTS long-distance calls being routed over 
>IP?  The only difference, really, is the point at which audio is fed to 
>the codec.  If the codec is in the central office, it's a "voice" 
>call.  If it's in the handset or local computer, it's VOIP.  I think we 
>can count on the Ashcroftians to eventually notice this and pounce upon 
>the opportunity.

Oh, they know, and they're in a mad scramble to make sure that
they can tap data communications as well, and most VOIP
doesn't have useful crypto protection.  So far, it's easier
to tap VOIP calls after they've been turned back into telco-flavored TDM,
but that's partly because they've got tools and practice and
established procedures for doing so.  The big difference with VOIP
is that it's normal to design relatively distributed VOIP systems
that do most of the work peer-to-peer, and it's harder to get a hook
into the endpoints without the endpoints being aware of them.
Some VOIP systems can probably be convinced to make three-way calls
without telling the user interface at the endpoints,
so the logical way to do wiretapping is to get the gatekeepers
to build calls that way.

Bill Stewart  bill.stewart at pobox.com 

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