Date: Mon, 09 Nov 2009 20:29:03 -0600
From: Paul Schmehl <pschmehl_lists@...rr.com>
To: Glenn.Everhart@...se.com, full-disclosure@...ts.grok.org.uk
Subject: Re: How Prosecutors Wiretap Wall Street

I fail to see how that applies.  The law of bailment basically means that 
you continue to own a possession, the physical possession of which you 
*temporarily* grant to another party.  (Allowing someone to drive your car, 
for example, but expecting them to return it when they're done.)

When you send a twitter or email, etc., you don't have any intention of 
continuing to possess the "property".  The reason you sent the 
communication is so that someone else could *receive* it from you, not so 
they could "watch" it for you temporarily.  When you send a letter to 
someone you don't continue to possess the letter.  The recipient does.

--On Monday, November 09, 2009 10:40 AM -0500 Glenn.Everhart@...se.com 
wrote:

> 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@...ts.grok.org.uk
> [mailto:full-disclosure-bounces@...ts.grok.org.uk] On Behalf Of Paul
> Schmehl
> Sent: Saturday, November 07, 2009 8:53 PM
> To: full-disclosure@...ts.grok.org.uk
> Subject: Re: [Full-disclosure] How Prosecutors Wiretap Wall Street
>
> --On November 7, 2009 4:06:42 PM -0600 mikelitoris@...hmail.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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Paul Schmehl, Senior Infosec Analyst
As if it wasn't already obvious, my opinions
are my own and not those of my employer.
*******************************************
"It is as useless to argue with those who have
renounced the use of reason as to administer
medication to the dead." Thomas Jefferson

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