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ATTORNEY CLIENT PRIVILEGE

TELECOMMUNICATIONS AND LAW ENFORCEMENT PEROGATIVES

For the devotee of the Byzantine example, consider the legal privacy and law enforcement questions raised by a situation where a person using a portable electronic telephone hooked up to a portable computer accesses a telecommunications network and then contacts an individual in another state and carries on a conversation concerning illegal sale of pirated software, and then sends the illegal software over the computer link after the receipt of an electronic funds transfer notice. It's all possible.

A related dilemma is posed by the possibility of "tapping" electronic telecommunications, either directly through phone lines, or by monitoring radio or microwave transmissions. The Crime Control Act of 1968 makes it a felony for any third party to place unauthorized listening devices in rooms or on telephones. Alas, the law does not appear to cover the transmission of digitalized computer information due to legal language in the bill that apparently does not cover digital communication.

What can be intercepted over the airwaves? Just about anything. According to David Kaplan of the Center for Investigative Reporting. Our own super spy agency, the National Security Agency (NSA), is the worldwide master of telecommunication data interception.

"Through a worldwide network of more than 2000 "intercept" stations, the NSA acts as a giant vacuum, sucking in international telephone calls, cables, electronic banking and mail, and all manner of microwave transmissions," reports Kaplan. And the trickle down theory does indeed work here - in terms of surveillance technology and techniques trickling down from the spy agencies to local law enforcement officials and private and corporate security specialists.

One incident in Detroit illustrates the conflict between privacy rights and law enforcement prerogatives when telecommunications are involved.

Leo Radosta, an alleged Cocaine dealer from Detroit, apparently kept in touch with his drug distribution companions in Michigan and Florida through electronic mail on The Source information network. When Assistant U.S. Attorney Thomas Ziolkowski attempted to seize copies of Radostas messages archived on computer tapes stored at Source in McLean, Virginia, both Source and Radosta tried to block the subpoena in court.

The U.S. Attorney took the position that the Source computer tapes were no more protected by privacy laws than carbon copies of business correspondence which could be subpoened from a corporate file cabinet. Attorneys for The Source countered that compliance with the subpoena would have completely destroyed the "expectation of privacy" by its customers.

The legal Solomons in the Michigan federal court were relieved of the burden of deciding this matter when Radosta pleaded guilty.

Another case reported by reporter Peggy Watt in InforWorld was equally ironic:

"The Phoenix, Arizona, teenager who was arrested for an alleged cirme that began with a message on a electronic bulletin board system thought that his electronic hosts were in league with the cops. He was wrong. The are the cops."

Yes, the local police had set up a BBS which clearly announced at sign-on that it was the Maricopa County Sheriff's Office Public Access Bulletin Board System. Set up to enhance community relations, the uniformed operators were astonished to see three separate messages from a 16 year old offering to install illegal cable television decoder boxes.

According to Watt, "With a little help from the local cable television company, deputies posed as residents seeking illegal, free cable TV service and took up the teen's offer. When he obliged, they arrested him."

ATTORNEY CLIENT PRIVILEGE

LAWMUG SYSOP Paul Bernstein adds a new dimension to the question of attorney-client privilege with his explanation of how Bulletin Board Systems and telecommunications were used to discuss the Tcimpidis case:

"Both the client and his lawyer were there, in public, to discuss matters. A group of us from coast to coast (in New York, Louisiana and myself in Illinois, plus a lawyer who became a judge in California) were sent copies of the statute via CIS [Compuserve Information Service] by counsel in California."

"We 'discussed' the statute, we divided up areas of research, transmitted the results to counsel in California, and discussed the results of the research on line. It was literally as if a good sized law firm had met together, face to face, to discuss the facts, the issues, the research and then hammered out a position."

"One of the most interesting aspects of the case was that 'Joe Citizen' won during an era when the U.S. Supreme Court is deciding 80% of its major cases in favor of governments and governmental prosecutors. Could it be that the computer, telecommunications and the ability of lawyers across the country to 'discuss' the case on line and to fashion a defense was the difference? This is speculation, but makes great sense to me."

"I believe you'll see more and more of this type of activity. The motivation of the lawyers nationally who participated was the recognition that our constitutional rights were involved and our indignation over what we believed was a clear violation of the constitutional rights of a citizen. We banded together in common defense, in the best tradition of the legal profession in this country."

The legal discussion on Compuserve took place on a commercial information system which maintains numerous bulletin boards for special interest groups. This fact alone raises privacy-related questions. For instance, what expectation of privacy did the various attorneys and client Tcimpidis have when they discussed the case on-line through a bulletin board? What happens to attorney-client privilege in on-line situations? Cases raising these and similar questions are already in the legal pipeline.

In one case in San Francisco, California, it was discovered that the police lieutenant, who controlled the police computer system, had assigned programmers to develop a program allowing him to check on the file names and size of files stored in the system. This was ostensibly done to enable the police computer specialist, Lieutenant Suttmeier, to monitor the unauthorized use of the system for personal purposes - a reality that has plagued computers since programmers discovered how to play Star Wars on the early large main frame computers, or to store their checking account running balances on office terminals.

In this case, however, the police shared a large multi-user minicomputer system with the city's Public Defender's Office, and four other bureaucracies. A minicomputer is smaller than a main frame but larger than a microcomputer such as the standard PC.

In February of 1985, after learning that the police had the theoretical capacity to read any file on the system, Public Defender Peter Keane asked that charges of murder be dropped against one of his clients because the police might have viewed important legal documents in the case. Quoted in the San Francisco Chronicle, the head of the Public Defenders office said it was "improbable" that police never read any files as they now contend. "Why crack the code if you're not going to read the files?" he asked. "It would be like cracking the Japanese code during World War II and not listening to the messages."

Ironically, the police have always had the technical capacity to monitor the Public Defender files, and the issue was only addressed after a controversy arose over the revelation that the police department was monitoring the system for unauthorized use.

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