On Fri, Mar 24, 2017 at 03:15:18PM -0400, Michael Richardson wrote:
Pete Resnick <presnick(_at_)qti(_dot_)qualcomm(_dot_)com> wrote:
> To deal with the second issue, it seems to me that we should address
> the first issue by making it crystal clear in the procedures that the
> subpoena must go to the entire IESG, not just the chair, and that
> whatever action is taken on the subpoena be approved by the IESG (with
> advice of counsel). If the entire IESG gets a copy of the subpoena, and
> our procedures make it clear to any court or other issuing authority
> that more than one person outside of their jurisdiction will be seeing
> the subpoena, perhaps that will mitigate the second issue.
Is your goal here to dissuade them from placing gag orders on the subpeona,
or is it to make it clear that their subpoena should omit unnecessary
identifying information, as we will post it publically.
The latter is certainly not going to work out where the identifying
information is necessary to fulfilling the subpoena. Intent to publish
might disuade civil parties from pressing subpoenas, but not law
enforcement agencies.
The former is unlikely to succeed as to LEAs. I cannot imagine a
private organization by-law that could disuade a LEA from pressing a
subpoena on that party when that LEA has access to friendly courts (they
always do).
I agree that the IESG should get a copy as a matter of course, but as
the legal entity to which the subpoenas are and will be served to is
ISOC, the IESG and IETF may not get much say as to that. It's hardly as
though ISOC might risk incurring criminal liability in order to abide by
our rules. On the other hand, ISOC might be more inclined to fight a
gag order that requires it not inform even the IESG, than to fight a gag
order that allows it to inform the IESG.
In any case, I'm surprised to see nothing about a warrant canary yet in
this thread. (Though even those might not work legally in some
jurisdictions. ISOC is vulnerable to rubber hoses.)
Lastly, I agree that where it is clear that a subpoena relates to a
criminal investigation, as opposed to a civil matter, the subpoena
should not be published as-is, at least not without the approval of the
targets named in it or extraordinary action by ISOC/IESG where they
think the public's interest is much stronger than the targets'. Any
redaction by the ISOC/IESG in such cases would presumably be at the
request of the targets, thus the targets might be the ones proposing
redactions (which, ISOC/IESG might reject). I suppose the relevant
distinguishing characteristic is: who pressed the subpoena, an LEA or a
non-LEA.
Nico
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