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Re: How Prosecutors Wiretap Wall Street
From: <Glenn.Everhart () chase com>
Date: Mon, 9 Nov 2009 10:40:17 -0500

The law of bailment applies, I would submit, to information sent on
wires. The act of sending something out is not handing it to the public
domain (though it may arrive in the public domain, depending on intent).
However the law of bailments seems to have been ignored by many, even
though it has been around for hundreds of years.

(mind: I am not a lawyer - have just read some books - and speak for
myself.)


-----Original Message-----
From: full-disclosure-bounces () lists grok org uk
[mailto:full-disclosure-bounces () lists grok org uk] On Behalf Of Paul
Schmehl
Sent: Saturday, November 07, 2009 8:53 PM
To: full-disclosure () lists grok org uk
Subject: Re: [Full-disclosure] How Prosecutors Wiretap Wall Street

--On November 7, 2009 4:06:42 PM -0600 mikelitoris () hushmail com wrote:


But to gather intelligence about what terrorists are up to, even
if a US citizen is involved, should not require a warrant.

This is all well and good, until the definition of terrorist is
changed and you become labeled a "terrorist" because your "reason"
is suddenly counterproductive to someone else's "opinion".  You
must apply the warrant requirement consistently.  Otherwise, when
interpretation of the word "terrorist" changes, it affects the
meaning of the law.

Sure.  I agree with that.  I think it's also important that law 
enforcement activities have much more stringent requirements than
military 
intelligence has.  The former is directed toward citizens, the latter 
toward enemies the military has to deal with.

And call me crazy, but I'm just not willing to
assume that someone won't abuse the power of being able to surveil
US citizens and do exactly what Nixon did, spy on their
competition/detractors.  Surely you can admit that some people do
things that they wouldn't normally do when big money and big power
are involved.  After all, "Those who cannot learn from history are
doomed to repeat it."  Don't be so naive to think it can't happen
again.


Of course.  I've never said they didn't.  In fact I've stated that
people 
in government have the same range of motives that people not in
government 
have, including the seven deadly sins, if you will.  But I've also
pointed 
out that they are not totally evil either, as some seem to think.  There

are also good people in government just as there are in every other walk

of life.

Intelligence works best in a world of secrecy.

So does deception.  Significantly more so, in fact.

As I've pointed out now several times, it's analogous to people
that get all hot and bothered by the fact that admins have access
to the data on their computers.

Yes, but that computer probably doesn't belong to me but instead to
my employer.  If it belongs to me, you better have a policy that
prevents me from using it at work, and/or a login disclaimer
informing me of your right to monitor what I do if I connect to
your network.  If not, you better damn well have a warrant if you
want to take a look at my property.

Therein lies the rub.  Whose property are the bits on the wire?  Once 
you've clicked on send, be it email or im or twitter or whatever, does 
that transmission still belong to you?  I would submit that it does not,

and that the privacy laws that protect you and your house and belongings

can no longer be sensibly applied.

Even you send a "private" email, to whom does it belong while it's in
the 
process of transmission?

And as far as I know, there's
no login disclaimer on the interwebs that allows the government to
monitor what I do on that network, nor on the telephone, or my
mobile phone contract.


Really?  To whom does your response to me belong?  What about the email 
you send to a friend?  A stranger?  And twitter posts?  Blog comments? 
Etc., etc.  Does it really make sense to extend your privacy rights to 
those things that you have sent into the public domain?  And how do you 
draw the line legally at what the government can look at without a
warrant 
and what they must get a warrant for when they can't even know what's on

the network without first connecting to it to look?  Should we forbid
them 
to ever connect simply because something they could potentially see is 
"private"?  And is it really private?

And if they already have a warrant to monitor all communications of a 
known terrorist, what happens when those communications include a US 
person?  All they allowed to monitor since they already have a warrant, 
even though they don't have one for the US person?

From what I've read getting a warrant in 72 hours is almost
impossible.

Ahah!  Now we're on to something.  Here's an idea.  Make it easier
to get that warrant when you need it.  Improve the process, so that
when requested, a warrant can be turned around in hours, not days.
Don't remove the requirement altogether.  That's simply inviting
trouble.


I completely agree.  I also think the definitions need to be much
clearer, 
so that intelligence people understand exactly where the fences are.
And 
I don't think a warrant should be required unless a US person is the 
*target* of the monitoring.

Paul Schmehl, If it isn't already
obvious, my opinions are my own
and not those of my employer.
******************************************
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