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Hacking By Subpoena
solidox writes "SecurityFocus has an article on how Alwyn Farey-Jones instructed his lawyer to issue a subpoena against ICA to get all their emails. ICA's ISP, NetGate, complied and gave them over 300 emails from ICA employees. When ICA found out about this they sued and the court ruled that this was a violation of the Computer Fraud and Abuse Act. This could be good news for those trying to fight off the RIAA subpoenas to isps to catch file-sharers."
Can't sue Microsoft for the Windows source code now!
/* FUCK - The F-word is here so that you can grep for it */
the entire company only had 300 emails collectively? i've got more than that in my deleted items folder on any 1 given day...
From the article:
"To equate an overbroad subpoena to breaking in is outrageous," says Mark Rasch, an attorney and former Justice Department cybercrime prosecutor. "The real crime here is the ISP getting the subpoena didn't contact the customer immediately and say, 'what do you want to do?' Every subpoena is overbroad. It's the responsibility of the party receiving the subpoena to try and narrow it."
This comment ignores the fact that the oldest form of hacking is social engineering. Doing something to sound official, or to appear to have clout that you don't have, in order to get what you want (generally, to get something you're not supposed to have) is definitely a form of hacking, used in some cases for nefarious purposes. The case mentioned in the article definitely has nefarious outcomes, and so, this sort of social engineering should definitely be prohibited.
When ICA found out about this they sued and the court ruled that this was a violation of the Computer Fraud and Abuse Act.
Well, not quite. The 9th Cir. reversed the trial court's dismissal of certain claims made by the plaintiffs. They did not hold that this conduct of serving overbroad, deceptive and illegal subpoenas per se violates the CFAA. Essentially, what the court did say was that there was enough questions of law and fact to go to trial on the issue. The opinion is on the 9th Circuit's website
And to answer the poster below, there are certain times when parties to a litigation can issue subpoenas (under the FRCP), and some statutes authorize subpoena power without requiring the person to whom you are going to serve to be a party (ex. DMCA). But no, not just anyone can issue an subpoena, even though today it may look like it!
Any lawyers care to comment?
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
Actually, from my reading of the article, it appears that the ISP is not being sued in this case, merely the person who issued the subpoenas. First off, a judge never ordered the ISP to hand over the emails. Apparently, in certain situations, individuals can issue subpoenas without asking the judge, and that appears to be what happened in this case. When the ISP received that subpoena, they were required by law to provide the emails, and did so. When the company whose emails were subpoenaed found out, that's when someone was sued...but it wasn't the ISP who was sued, but the person who issued the subpoenas in the first place.
(Of course, I'm not a lawyer either, so it's entirely possible that my reading of the article is completely wrong. I'm sure someone will post to enlighten me if that is the case)
There's a reason I'm not a Netgate customer anymore.
They were a fine ISP when I used them several years ago, having good dialin numbers (these were the days before easy broadband access) and reasonable prices. They didn't have any technical problems to speak of. They even had really good USENET access (I used to post a ton from krellan@netgate.net, Google it).
However, Netgate's social/legal policies really stank.
At the time, for example, they had agreed to host godhatesfags.com. So, I left.
It wouldn't surprise me now to see them overzealously comply with a subpoena, hurting their own customers in the process.
I still think it's really cheap of hosting companies to not warn their customers when receiving legal action against them (except when the DMCA actually requires that they not warn, yet another reason why it's such a scary law).
Dr. Demento On The 'Net!
IANAL (naturally) so I'm confused.
As I understand it, the DMCA allows someone who thinks they are being ill used (in copyright sorts of ways) to issue a subpoena essentially without a judge being involved and those on the receiving end are then supposed to comply. But this lawyer says that those on the receiving end get to try to negotiate it. If there's no court/judge involved, who do you negotiate with?
What would be their closing statement using these emails as evidence:
"Your honor, as you can see the defendent is of questionable moral integrity and dubious legal practice. Of their 300 emails we *ahem* appropriated, 289 of the messages received were in relation to conduct of dubious sexual nature. Obviously, your honor, they are nothing but a bunch of no-good perverts!"
The recipient of a subpoena has an obligation to act in good faith and not just throw the cupboard open.
For example, lets say you got some MS Documents via e-mail, and they are under an NDA. You want to give them to your buddy, but can't because of the NDA. So you get your buddy to issue you a DMCA subpoena for ALL your e-mails, and you give them over.... he gets the data you otherwise couldn't give him and you claim as a defense to violating the NDA as the subpoena (which is why mos NDA's have a notice clause that you must give them notice if you get a subpoena before complying with it.) In this situation, MS can go after you for complying with the subpoena that you shouldn't have complied with.
This is a pretty outrageous example, but is illustrates a situation where the recipient should NOT have complied with the subpoena.
In a non-collusive situation, similar results happen when someone hands over whatever the subpoena asks for. If an attorney is taking advantage of the subpoena process, he or his client can be held liable. Asking for stuff you know (or reasonablely should know as an attorney) you can't force the other person to give you by subpoena can get you sued and disbarred.
However, many attorneys do it all the time, knowing that the recipient will not know it, or if they do, it will be cheaper to just comply than fight.
But under some laws, a company that caves in to such a brazen subpoena can be held liable too. If the LAW (not just an NDA) makes it illegal to release certain information (such as long distance toll call information for calls you make from home) and the phone company gets a subpoena from an out-of-state court, the phone company should NOT comply with the subpoena since it does not HAVE to. Complying voluntarily with a subpoena that you don't legally HAVE to comply with will violate the law restricting disclosure absent a "valid" subpoena or court order.