1. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Best Practices for OSPs: Law Enforcement Information Requests Kurt Opsahl, Senior Staff Attorney Kevin Bankston, Staff Attorney

2. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 What kind of best practices? Intermediaries that enable online speech can also become chokepoints to cut off that speech Best practices for responding to –Law enforcement information requests –Civil subpoenas in a manner that protects ISPs and users

3. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Overview: Responding to Legal Information Requests How is your ISP classified under the law? What information does your ISP have and what may be sought? What legal process must be provided? What procedures should your ISP employ in responding to requests?

4. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Best Practices Best practices: –Require proper legal process –minimize logging –develop policy for user notice –establish record retention policy –internal training

5. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 What type is your ISP under ECPA? The Electronic Communications Privacy Act defined two types of ISPs: Electronic Communications Service to the extent you permit users to communicate with each other Remote Computing Service to the extent you permit users to store communications or other information

6. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 What Information Do You Have? Some things are obvious like Log Files, but not what they contain May also store Email, User ID, Connection Info, Search Queries, URLs, Cookies, Unique Identifiers and IP Addresses Other things?

7. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Do You Need the Logs? If you don’t have it, you can’t be forced to produce it Can reduce compliance costs by minimizing information retained Keep minimum logs for needs, and regularly delete unneeded information

8. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Background: ECPA, SCA, Title III and FISA Electronic Communications Privacy Act Stored Communications Act Title III is the Wiretap Act Foreign Intelligence Surveillance Act

9. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Background: ECPA Electronic Communications Privacy Act amended the Wiretap Act to cover electronic communications (i.e. email) –SCA is part of ECPA

10. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Background: SCA The Stored Communications Act, regulates when an electronic communication service provider may disclose the contents of or other information about a customer’s emails and other electronic communications to third parties. –Contents of communications may not be disclosed to civil litigants even when presented with a civil subpoena.

11. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Background: Title III Title III makes it unlawful to listen to or observe the contents of a private communication without the permission of at least one party to the communication and regulates real-time electronic surveillance in federal criminal investigations. –Many states require all party consent

12. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Background: FISA The Foreign Intelligence Surveillance Act authorizes federal agents to conduct electronic surveillance, as part of a foreign intelligence or counterintelligence investigation, without obtaining a traditional, probable-cause search warrant

13. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Classification of Information Basic Subscriber Information (name, address, equipment identifier such as temporary IP address, and means and source of payment) Other Information (clickstream, location) Wiretap, Pen Register or Trap and Trace Content - Real Time and Stored

14. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Records of Videos Watched The most highly protected piece of personal information under the law: –“information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider” Not limited to “tapes”, includes a/v material Must be destroyed “as soon as practicable, but no later than one year from the date the information is no longer necessary” Contact your legal counsel before disclosure pursuant to legal process

15. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Location Information Majority of courts require probable cause warrants for disclosure of real-time or prospective location information –DOJ asserts a lower standard Contact your legal counsel before disclosure

16. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Legal Standards Basic Subscriber Information: Subpoena or better (Gov’t may not use civil subpoena) Other Information: 2703(d) order or better Dialed digits: Pen Register or better Real Time Content: Title III order Stored Content < 180 days: search warrant Stored Content > 180 days: subpoena or better Video records: Warrant or court order

17. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Exception: Emergency Cases Customer Information/Content Standard: ISP reasonably believes that an emergency involving immediate death or serious physical injury to any person requires disclosure of contents or justifies disclosure of records –Get the justification in writing

18. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 National Security Letters FBI may compel the production of "subscriber information and toll billing records information, or electronic communication transactional records" through National Security Letters. –Generally NSLs must be kept secret –May contact legal counsel.

19. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 FISA Orders Pursuant to FISA, the gov’t may provide FISA court order or other process under the FISA Amendments Act –Contact legal counsel –EFF would love to challenge the FAA

20. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 A visit by Suits with Shades If you get a personal visit from Law Enforcement, call your company’s lawyer. –Often, just an informal request for assistance –Safest course is to get legal counsel early

21. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Provide Notice to Users Best practice is to provide notice where possible - let user move to quash LEAs need an order to prevent notice on subpoenas Notice may be delayed under ECPA

22. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Backup Preservation Any LEA can request by any means Notify LEA, but do not deliver info LEA notifies user - starts 14 day clock for user objection Absent objection, must provide data upon receipt of proper process

23. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Reimbursement Yes for subpoenas Yes for technical assistance (not required to redesign, just help) Yes for special requirements, backup preservation, etc Yes for all civil requests

24. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Provider Exception Provider exception grants service providers the right "to intercept and monitor [communications] placed over their facilities in order to combat fraud and theft of service."

25. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Accessible to Public Privacy laws have an exception for electronic communication made through a system "that is configured so that... [the] communication is readily accessible to the general public.” –If information sought by LEA is publicly available, you can tell them to get it themselves –In some cases authentication may be required

26. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Penalties and Safe Harbors May face lawsuits for improper disclosure You are protected from civil actions if you rely in “good faith” upon appropriate legal process Do not disclose information without being sure you have the right process

27. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Parting Thoughts Always get it in writing to preserve immunities Your ISP is not the agent of an LEA State and Local rules may be more strict If in doubt, ask the lawyers

28. May 11, 2009 Golden Gate University EFF 2009 Bootcamp 2.0 Help Us Help You Let us know when you receive questionable over-reaching requests 415.436.9333 information@eff.org http://www.eff.org http://ilt.eff.org