In message <[EMAIL PROTECTED]>, Meyer Wolfs
heim writes:
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>I guess this explains the FBI's opposition to the Verio merger. I wonder
>if a colocation company or service provider could be forced to disclose
>its participation in the Carnivore project. Any AboveNet/Exodus customers
>here want to try?
>
>There's been speculation about NSA black boxes in such facilities for
>years. The FBI, however, isn't quite as "above the law" as the NSA likes
>to think it is. What would the legality of operation a random email
>sniffer be? Unlike a phone system, you can't wiretap email on the network
>level without violating the privacy of all the other users sharing that
>switch.
>
>Is there any old case law on wiretaps on telephone party-lines, where
>uninvolved parties were monitored?
There was an interesting case in New York in 1993, where the Court of
Appeals (the highest state court in New York -- the Supreme Court there
is the trial-level court) ruled that pen registers (devices for
recording dialed numbers) could not be used without a wiretap warrant --
and wiretap warrants are much harder to get. Their reasoning was that
in order to record the dialed number, you had to tap the line;
therefore, the same requirements should apply. (I don't have a precise
citation for this case; the text of the opinion I have says "not yet
published".)
In this situation, everyone's email has to be scanned in order to
isolate the desired traffic. In other words, we have a general wiretap
device that -- according to the FBI -- is used only in accordance with
the restrictions of the warrant. But that was the case with pen
registers in New York, and the court wouldn't buy it.
This precedent isn't binding on the FBI, but Federal courts do refer to
state court opinions when appropriate. It might be an interesting case.
--Steve Bellovin
