Politech: Jon Zittrain on surveillance and Councilman case [priv]

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://www.politechbot.com/2004/07/20/kerr-councilman/


-------- Original Message --------
Subject: Re: [Politech] Orin Kerr on Councilman case: "Sky *is* 
falling!" [priv]
Date: Thu, 15 Jul 2004 14:15:29 -0400
From: Jon Zittrain <zittrain () cyber law harvard edu>
To: Orin Kerr <okerr () law gwu edu>
CC: Declan McCullagh <declan () well com>
References: <40F6A65D.808 () well com>

Orin,

I confess I was one of those who's been thinking of Councilman as no big
deal -- mostly for the reasons you mention.  I found your falling sky piece
persuasive enough that I went back and carefully reread the opinion.  I
think you've got a strong point that Congress should clean up its Act(s),
and perhaps explore whether stored electronic communications of even the
core Steve Jackson games variety -- e.g. email sitting on an proto-ISP's
server -- should have protections similar to messages in transit.  Until
that happens, though, I think there's enough ambiguity/narrowness to the
Councilman decision to say that it really just slightly expands the SJ
Games point -- saying that an ISP's reading of the mail as it flows in,
*about* to be placed into a server's holding area for user retrieval, is
tantamount to reading it an instant later by a new daemon once the mail has
been so placed.  That doesn't mean that Carnivore -- which does its
monitoring at the packet level rather than file level, so far as I know --
need be brought under the same roof.  One could still say that file
monitoring is one thing; packet monitoring at the router level -- where 99
times out of 100 the packets won't be sitting on any server run by the ISP
the way that user email is -- is another.

Plus the prospect of end-to-end user email encryption offers a level of
protection that, should the client-side software chips flal the right way,
moots the benefits accorded to snoopers by a looser interpretation of
ECPA's limitations.  ...JZ

At 11:44 AM 7/15/2004, you wrote:
> Previous Politech messages:
> http://www.politechbot.com/2004/07/06/isp-wiretapping/
> http://www.politechbot.com/2004/07/13/isp-monitoring/




-------- Original Message --------
Subject: Re: [Politech] Orin Kerr on Councilman case: "Sky *is* 
falling!" [priv]
Date: Sat, 17 Jul 2004 08:50:36 -0700
From: James J. Lippard <lippard () discord org>
Organization: Legion of Dynamic Discord
To: Orin Kerr <okerr () law gwu edu>, declan () well com
References: <40F6A65D.808 () well com>

On Thu, Jul 15, 2004 at 11:44:29AM -0400, Declan McCullagh wrote:
> -------- Original Message --------
> Subject: my take on Councilman
> Date: Wed, 14 Jul 2004 18:45:08 -0400
> From: Orin Kerr <okerr () law gwu edu>
> To: <declan () well com>
>
[...]
> The Councilman approach largely nullifies the Wiretap Act online, by
> contrast, with rather remarkable implications. It is my understanding
> that when the FBI gets a Wiretap order to install a network wiretapping
> device such as Carnivore, they usually install the device at a
> nanosecond-storage point. Well, guess what, folks-- that's no longer
> regulated by the Wiretap Act. Under Councilman, DOJ can install
> Carnivore with at most only a search warrant. Even worse, the FBI

I don't think this is quite accurate.  Carnivore is a standalone
system that intercepts data on the wire, which is not a storage point
under the Councilman decision by my reading of it.  What this opens
the door to is an alternative form of Carnivore that is software
running directly on a mail server, though there may be other
protections that an ISP would have against being forced to run foreign
software on their servers.

The storage point in Councilman is on a mail server, which is not
necessarily a nanosecond-storage point--mail often sits on intermediate
mail servers for minutes or hours at a time, depending upon the availability
of the next mail server in the chain.  Internet mail is handled by a
"store-and-forward" protocol.

--
Jim Lippard        lippard () discord org       http://www.discord.org/
GPG Key ID: 0xF8D42CFE
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