Interesting People mailing list archives
IP: Re: "Lawful access" vs warrants: I found the difference
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 20 Apr 1998 12:35:10 -0400
Date: Mon, 20 Apr 1998 09:46:15 -0400 From: denning () cs georgetown edu (Dorothy Denning) The conditions for getting wiretaps -- including w/out a court order under FISA -- are outlined in a paper I co-authored with people in law enforcement in 1993 -- Wiretap Laws and Procedures. Here's the URL and the snippet on FISA. http://www.cs.georgetown.edu/~denning/wiretap/Wiretap.txt FISA authorizes electronic surveillance of foreign powers and agents of foreign powers for foreign intelligence purposes. Normally, a court order is required to implement a wiretap under FISA. There are, however, two exceptions. The first is when the communications are exclusively between or among foreign powers or involve technical intelligence other than spoken communications from a location under the open and exclusive control of a foreign power; there is no substantial risk that the surveillance will acquire the communications to or from a U.S.person; and proposed minimization procedures meet the requirements set forth by the law. Under those conditions, authorization can be granted by the President through the Attorney General for a period up to one year. The second is following a declaration of war by Congress. Then the President, though the Attorney General, can authorize electronic surveillance for foreign intelligence purposes without a court order for up to 15 days. Dorothy Denning
From farber () cis upenn edu Sun Apr 19 20:13:03 1998
Date: Sun, 19 Apr 1998 20:01:56 -0400 From: Dave Farber <farber () cis upenn edu> Subject: IP: "Lawful access" vs warrants: I found the difference today! To: ip-sub-1 () majordomo pobox com Date: Sun, 19 Apr 1998 14:54:16 -0700 From: John Gilmore <gnu () toad com> Remember how in the Clipper debate, the government insisted on using the term "lawful access" when talking about what the government had to do to get keys out? They implied it meant a warrant issued by a judge, but actually the proposed rules said any "lawful access" would do. That phrase kept reappearing in government proposals. I've been looking for years in the laws to find what secret loophole they've been trying to protect. Today I ran across it! It's Executive Order 12333, signed by our favorite senile president, Ronald Reagan, in 1981. It says: 2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order. In other words, if the Attorney General claims that someone is an agent of a foreign power, no warrants are needed; the target has no Constitutional rights any more. Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. You will recall that the Attorney General made exactly this claim about Martin Luther King (that he was an agent of a foreign power), to justify the years of FBI surveillance. For all we know, they have been claiming that anyone who advocates crypto legalization must be an agent of a foreign power. It really wouldn't surprise me. We shouldn't stop looking for more loopholes -- they may have several -- but I think this is the big one. John PS: It isn't clear that the President has the authority to do this. The claimed authority is "the National Security Act of 1947, as amended". I doubt it delegates to the President the right to approve warrantless searches of US citizens. Even if it did, I doubt whether such a provision would be Constitutional. I'd be very interested in knowing if any court has ever looked at whether this Executive Order has any effect at all on the civil rights of US persons.
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