The New Writs of Assistance
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3075587 [papers.ssrn.com]
2017-12-01 22:58
One possible solution to this problem is for network intermediaries to refuse government requests for aid, and attempt to sustain those refusals in court. Although this possibility has received an enormous amount of attention, there is substantial cause for skepticism about how well it can work. Congress has given the government wide authority to demand information and assistance through tools like subpoenas, the Stored Communications Act, and Title III. Even when the government does not have specific statutory authorization, courts have interpreted the All Writs Act to authorize a great deal of open-ended aid, consistent with the well-settled Anglo-American history of third-party assistance in law enforcement. It is also far from unheard-of for the Executive to read restrictions on its surveillance authority narrowly, and its own inherent powers broadly, to engage in surveillance that is quasi- or extra-legal.
This is a very good read, covering several hundred years of common law history in general, plus a hundred years of wiretapping history, plus some current events.