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@private> To: Orin Kerr <okerr@private> CC: Declan McCullagh <declan@private> References: <40F6A65D.808@private> 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@private> Organization: Legion of Dynamic Discord To: Orin Kerr <okerr@private>, declan@private References: <40F6A65D.808@private> 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@private> > To: <declan@private> > [...] > 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@private http://www.discord.org/ GPG Key ID: 0xF8D42CFE _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2.1.3 : Tue Jul 20 2004 - 22:57:24 PDT