From: owner-nanog@merit.edu [mailto:owner-nanog@merit.edu]On Behalf Of
Owen DeLong
Sent: Wednesday, June 01, 2005 1:31 AM
To: Jason Frisvold; Fergie (Paul Ferguson)
Cc: nanog@merit.edu
Subject: Re: Administration Asks Appeals Court To Compel ISP Searches
[ SNIP ]
I have never seen an NSL and have never received one.
IANAL, and I haven't seen one post yet, so I'd suggest
that if anyone has a question on the process or how it
affects them, _they contact a real lawyer_.
Latest publicly available NSL:
http://www.aclu.org/nsl/legal/NSL_formletter_080404.pdf
Latest FBI Memo on authority and filling out an NSL:
http://www.aclu.org/patriot_foia/FOIA/Nov2001FBImemo.pdf
Summary: Subpoena like, still requires internal approval,
not part of FISA, but statutory authority under the
Foreign Intelligence Surveillance Court.
Myth: Wiretap means voice surveillance. It insinuates it, but
voice intercept is least used out of the CALEA punclist, believe
it or not. Wiretap is used as a descriptor for all.
-M<
A major concern is indemnification and immunity for the ISP.
When someone is prosecuted they usually face major legal expenses, and
often are incapable of paying them. The prospect of a lengthy prison
sentence and/or criminal record does not portend well either.
Defense lawyers know this all too well and will go after various deep
pockets to help fund their client's defense, such as an ISP who they
will argue revealed information inappropriately, violated a position
of trust, etc. etc. etc.
A proper subpoena issued by a court of competent jurisdiction and
reasonably fulfilled tends to be slam-dunk defense against such
lawsuits. Likely a judge would just toss any attempt at a lawsuit at
initial hearing if it's obvious you were legally compelled to provide
the information in question.
To me this is at least as big a concern as any vague sense of fair
play.
Add in gag orders and the like, an atmosphere of silence and denial by
LEOs this creates, and one gets the sinking feeling one can find
themselves, as the expression goes, way up the creek without a paddle.
I've certainly had exactly this conversation with LEOs who sent
requests for customer information, even an Ivy League university's
senior legal counsel once when their "police dept" was demanding info
and for some bizarre reason refused to get a subpoena even over a
period of months of ever more heated requests and never had the
slightest doubt expressed that I was exactly correct in my concerns.
A major concern is indemnification and immunity for the ISP.
This sort of power was greatly expanded by a suspiciouly intentioned US
bill-turned-law from 2001 whose name I dare not mention in cleartext (<g>),
which allows such subpoenaless probes into far more information repositories
than they were originally allowed, including banks, many more forms of
communications services, travel services, consumer data, and libraries.
Nearly all of these expansive -- and in some cases completely judiciary
bypassing -- changes are coupled with implicit gag order subsections.
Very little attention was paid (whether accidentally or deliberately I won't
dare question) to the indemnity concerns about those implicit gag order
subsections. Or, in other words, they have no "out clauses" to allow
disclosure of the probe(s) in a legal case involving the same information.
That means such a situation could indeed leave you...