Judge orders Google to comply with FBI's secret NSL demands

Re:Judge orders Google to comply with FBI's secret NSL demands by rayiner on Friday May 31, 2013 @05:14PM (#5801410)

The context of the order in Sony is with respect to discovery in an ongoing trial. There is very little "information privacy" with respect to the power of a court to seek out evidence in a trial, from anyone that might have it. See Elkins v. United States ("The pertinent general principle, responding to the deepest needs of society, is that society is entitled to every man's evidence.").

But that's a very different issue than privacy rights in general.

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Re:Judge orders Google to comply with FBI's secret NSL demands by venomsnake on Friday May 31, 2013 @06:12PM (#5801618)

The access granted by Illston extends even to those who had not downloaded the jailbreak code.

I would say this puts it a bit out of the comfort zone.

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Re:Judge orders Google to comply with FBI's secret NSL demands by rayiner on Friday May 31, 2013 @06:21PM (#5801650)

The judge granted access to get IP addresses of visitors to his website, whether or not they downloaded the code, which would be relevant to Sony in proving how widely the information was disseminated. There is nothing unusual about this. Information relevant to a claim or defense is fair game for a court's subpoena power. If this was a murder case, that took place in an apartment, the judge would allow the prosecution to subpoena the lobby's visitor logs, even as to people who were not visiting the victim's apartment. This doesn't say anything about the judge's views on "information privacy" just about the fact that there really isn't any as against the subpoena power of a court. If the material is private in some way, it will be treated confidentially and redacted in public filings, but that's about it.

That's the problem with talking about a "right to privacy" in Anglo American law: there really isn't one. There are various protections serving different purposes, but they're not unified into some overarching principle of a right not to disclose or have information disclosed. That's why the subpoena power is so much broader than the power of police to search: because the animating principle isn't "privacy" but rather the protection of criminal defendants. If it were about privacy it wouldn't make sense to e.g. treat witnesses, who can be compelled to testify, differently than defendants, who can't.

Now, I'm not arguing that this is the best possible way to do things. But it's the way we have been doing it for centuries (since the Middle Ages).

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Re:Judge orders Google to comply with FBI's secret NSL demands by venomsnake on Friday May 31, 2013 @06:33PM (#5801676)

Another question - are there any protections from Sony using the information in other non case related activities -extortion letters similar to porn sites come to mind.

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Re:Judge orders Google to comply with FBI's secret NSL demands by rayiner on Friday May 31, 2013 @07:19PM (#5801831)

A subpoena is a signed litigation document, which means it's either ordered by the court or issued by an attorney of record. Abuse of the subpoena can result in sanctions on both the attorney who signed it and his or her client. It can also run into various statutes (e.g. the 9th circuit allowed a suit to proceed against an attorney who issued an overbroad subpoena for e-mail under the CFAA under the theory it was equivalent to hacking the e-mail provider). Extortion is of course also illegal. Finally, witnesses can invoke the 5th to avoid producing information that might incriminate them in a subsequent criminal case.

As a general rule, there's "no money" in doing something like that. You run the risk of getting sanctioned, and if you use the information improperly in other litigation, it'll just get excluded as having been obtained via abuse of a subpoena.

The bigger worry is stuff like this, which doesn't happen under court supervision: http://www.wired.com/threatlevel/2012/08/administrative-subp....

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