"Got a subpoena?"

Mon Dec 4 04:03:17 PST 1995

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Brian Davis writes:

> On Thu, 30 Nov 1995, sameer wrote:

> > > What about a court order to (a) start comprehensive logging, and (b) not
> > > tell anyone under penalty of ______ .

> I am unaware of any authority for such an order.

This evening I ran across _In Re Application of United States of America for
Order Authorizing Installation of Pen Register_ 610 F.2d 1148 (3rd Cir., 1979),
citing to _United States v. New York Tel. Co._ 434 US 149, 54 L.Ed.2d 376,
98 S.Ct. 364 (1977), holding that Fed.R.Crim.P. 41 and the All Writs Act
28 USC 1651 give a federal district court the power to direct a telephone
company to make equipment and personnel available to assist in gathering
evidence and intelligence as part of a criminal investigation. (Also see
58 ALR Fed 719 "Authority of District Court to order telephone company to
assist law enforcement agents in tracing telephone calls", and _Michigan
Bell Tel. Co. v. United States_ 565 F.2d 385 (6th Cir., 1977).

I don't get much exposure to federal criminal law so I'm way out of my depth
re whether that interpr
tation of rule 41 is current (or if rule 41 has changed
in the intervening 20 years) but it might be a starting place. The cases
discuss the telephone companies' status as "highly regulated utilites with
a duty to serve the public" as justifying a diminished interest in autonomy;
presumably this factor would work against the commandeering of a remailer.
Westlaw shows some 860-odd screen pages worth of annotations for 28 USC 1651
and, frankly, I'm not up to reading them, at least not on a whim.

According to _In re Application of United States_, supra, and _In re
Application of United States_ 616 F2d 1122 (9th Cir., 1980), the telephone
company (and likely a remailer) is entitled to an in camera hearing prior
to the law enforcement use of facilities/personnel to determine if it is
unduly burdensome and/or how much compensation should be paid.

The opinions also don't go anywhere near the question of whether or not the
phone company had the choice to simply go out of business entirely; I think
that option would be more easily available to a remailer. If my remailer
were served with an order to begin logging, I think I might prefer to move
all of the RAM in that box over to my Windows box, say, so that I could get 
Terminal Velocity to run with SVGA resolution, or whatever. I do think
there's a meaningful difference between asking an enormous business to run
their operations a wee bit differently (or ask technicians to work overtime,
where the court pays the overtime) and forcing a single individual to
reorganize their life around a criminal investigation. (see the discussion
of over-burdensomeness)

Then again, it doesn't seem so hard for the cops to just seize the box(es)
which run the remailers, set them up down at the station, and start watching
traffic. This seems to be a factor in favor of running remailers on big
systems which would be politically more difficult to seize, e.g., Portal's
or Caltech's or some other big multiuser box owned by someone who's already
got an attorney on retainer.