RE: Administration Asks Appeals Court To Compel ISP Searches
-----Original Message----- 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
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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. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD The World | Public Access Internet | Since 1989 *oo*
On Wed, 1 Jun 2005, Barry Shein wrote:
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...
way up the creek without a paddle.
-- -- Todd Vierling <tv@duh.org> <tv@pobox.com> <todd@vierling.name>
participants (3)
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Barry Shein
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Hannigan, Martin
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Todd Vierling