At 11:03 PM 4/7/96 -0700, david friedman wrote:

Unicorn wrote:

...

No ISP in its right mind is going to ask for trouble. If I'm a prosecutor and I suspect that the ISP may be complicit in hiding evidence, I'm going to ask for a search and seizure warrant (a la sun devil) and just walk in and take the equipment I believe the data to be on and then satisify myself that it's unattainable.

Last semester I taught a seminar on computers, crime, and privacy and we had, as a guest lecturer one evening, Silicon Valley's one full time computer cop (he works for the SC County D.A.'s office). One of his comments was that ISP's were generally very cooperative, because they knew that he could legally impose large costs on them by seizing their systems as evidence.

It is exactly this attitude that we need to change. I presume you saw my comment from a day ago, when I pointed out that before 1968, local phonecos were doing wiretaps without any sort of court order, simply because the local cops (or FBI) asked, even though those requesting the tap could not use the evidence in court. And even _that_ level of cooperation was presumably done without any plausible risk that the prosecutor could sieze a phone switch for non-cooperation. It is even likely that the phoneco could have acted to lose the prosecutor/police his job if they had decided to press and publicize what must have been an illegal request at the time. The fact they did not is telling. It was clearly not an "arm's length" relationship. It was a relationship of friendly people who regularly did favors for each other, playing with their customer's privacy. This is the reality that we must face and deal with: Officials abuse their positions all the time. They will do so if the system is designed to allow them to. Allowing officials to sieze an ISP's equipment is just asking for trouble. In my opinion, ISP's should be able to decide ahead of time whether to cooperate if they are asked for information. They should be entitled to take a position that they will (or will not) contract with their users to prevent any disclosure of information, and this decision should be legally binding on the prosecutor as well. The "feedback loop" is closed by the fact that bad publicity may accrue if the ISP refuses to cooperate, leading to a "market" of different ISP's with different standards. I am convinced that whatever benefit may arguably accrue from being able to subpoena information is far lower than the cost of loss of freedom that surely will occur if prosecutors are able to strong-arm ISP's into illegal cooperation, such as occurred with phonecos before 1968. I'm still waiting for somebody to show that the majority of crimes that are investigated using subpoena power are "malum in se" crimes, as opposed to "malum prohibitum" ones. Jim Bell jimbell@pacifier.com