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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
"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
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,
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
violation of the constitutional rights of a citizen. We banded
together in common defense, in the best tradition of the legal profession
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
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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