Fun_People Archive
28 Apr
"Lawful access" vs warrants: I found the difference today!

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From: Peter Langston <psl>
Date: Tue, 28 Apr 98 23:32:54 -0700
To: Fun_People
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Subject: "Lawful access" vs warrants:  I found the difference today!

X-Lib-of-Cong-ISSN: 1098-7649
Forwarded-by: Anton Sherwood <>
Date: Sun, 19 Apr 1998 13:43:21 -0700
From: John Gilmore <>

Remember how in the Clipper debate, the government insisted on using the
term "lawful access" when talking about what the government had to do to
get keys out?  They implied it meant a warrant issued by a judge, but
actually the proposed rules said any "lawful access" would do.  That phrase
kept reappearing in government proposals.

I've been looking for years in the laws to find what secret loophole they've
been trying to protect.  Today I ran across it!

It's Executive Order 12333, signed by our favorite senile president, Ronald
Reagan, in 1981.  It says:

    2.5 Attorney General Approval.  The Attorney General hereby is delegated
    the power to approve the use for intelligence purposes, within the
    United States or against a United States person abroad, of any technique
    for which a warrant would be required if undertaken for law enforcement
    purposes, provided that such techniques shall not be undertaken unless
    the Attorney General has determined in each case that there is probable
    cause to believe that the technique is directed against a foreign power
    or an agent of a foreign power. Electronic surveillance, as defined in
    the Foreign Intelligence Surveillance Act of 1978, shall be conducted
    in accordance with that Act, as well as this Order.

In other words, if the Attorney General claims that someone is an agent of
a foreign power, no warrants are needed; the target has no Constitutional
rights any more:

    Fourth Amendment

    The right of the people to be secure in their persons, houses, papers,
    and effects, against unreasonable searches and seizures, shall not be
    violated, and no warrants shall issue, but upon probable cause,
    supported by oath or affirmation, and particularly describing the place
    to be searched, and the persons or things to be seized.

You will recall that the Attorney General made exactly this claim about
Martin Luther King (that he was an agent of a foreign power), to justify
the years of FBI surveillance.  For all we know, they have been claiming
that anyone who advocates crypto legalization must be an agent of a foreign
power.  It really wouldn't surprise me.

We shouldn't stop looking for more loopholes -- they may have several --
but I think this is the big one.


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