Date: Tue, 10 Nov 2009 07:56:47 -0500
From: <Glenn.Everhart@...se.com>
To: <pschmehl_lists@...rr.com>, <full-disclosure@...ts.grok.org.uk>
Subject: Re: How Prosecutors Wiretap Wall Street

Mind IANAL; however it is I think a bailment even though the bailee is
also engaged to act as a delivery agent. Point is that the item remains
someone's property at all times, with what seem to me fairly well
defined expectations around who has what rights to it.
This does not disappear when delivery is done by other than the person
who made the property. Electronic delivery is just another form. If the
law is going to accept a notion that something is property, this
follows. I would submit though that the 4th Amendment language "effects"
is somewhat broader than items a person owns. Abolish all copyright and
patent law and it would IMO still apply. Or ought to...


-----Original Message-----
From: Paul Schmehl [mailto:pschmehl_lists@...rr.com] 
Sent: Monday, November 09, 2009 9:29 PM
To: Everhart, Glenn (Card Services); full-disclosure@...ts.grok.org.uk
Subject: RE: [Full-disclosure] 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

This transmission may contain information that is privileged,
confidential, legally privileged, and/or exempt from disclosure
under applicable law.  If you are not the intended recipient, you
are hereby notified that any disclosure, copying, distribution, or
use of the information contained herein (including any reliance
thereon) is STRICTLY PROHIBITED.  Although this transmission and
any attachments are believed to be free of any virus or other
defect that might affect any computer system into which it is
received and opened, it is the responsibility of the recipient to
ensure that it is virus free and no responsibility is accepted by
JPMorgan Chase & Co., its subsidiaries and affiliates, as
applicable, for any loss or damage arising in any way from its use.
 If you received this transmission in error, please immediately
contact the sender and destroy the material in its entirety,
whether in electronic or hard copy format. Thank you.

_______________________________________________
Full-Disclosure - We believe in it.
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