North American Network Operators Group

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RE: Administration Asks Appeals Court To Compel ISP Searches

  • From: Barry Shein
  • Date: Wed Jun 01 15:24:13 2005

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

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

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