From: jim bell <jimbell@pacifier.com>
Date: Tue, 9 Apr 1996 05:42:19 +0800
To: cypherpunks@toad.com
Subject: Re: "Contempt" charges likely to increase
Message-ID: <m0u6JO3-00090zC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


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