Wednesday, November 11, 2009

anatomy of a bogus subpoena

EFF | How the Government Secretly Demanded the IP Address of Every Visitor to Political News Site

1. Introduction: Lifting the Fog of Secrecy Surrounding Law Enforcement Surveillance

Secrecy surrounds law enforcement's communications surveillance practices like a dense fog. Particularly shrouded in secrecy are government demands issued under 18 U.S.C. § 2703 of the Stored Communications Act or "SCA" that seek subscriber information or other user records from communications service providers. When the government wants such data from a phone company or online service provider, it can obtain a court order under the SCA demanding the information from the provider, along with a gag order preventing the provider from disclosing the existence of the government's demand. More often, companies are simply served with subpoenas issued directly by prosecutors without any court involvement; these demands, too, are rarely made public. (For more background on how the SCA works, see this section of EFF's Surveillance Self-Defense manual.)

We at EFF, like the public at large, are often left in the dark about what the government's practices in this area look like. However, sometimes — just sometimes — the fog will clear and we'll get a worrisome picture of what the government gets up to behind closed doors. Sometimes this happens when an independent-minded judge publishes an opinion revealing the government's practices, like the judge that first revealed that the government was tracking cell phones without warrants. Other times, someone served with an SCA demand such as a National Security Letter comes to us for legal assistance.

Recently, one such recipient of an SCA demand did come to us, and we're glad she did. The story of that subpoena — to the administrator of, an independent activist news site aggregating stories from Indymedia web sites across the country — provides yet another example of how government abuses breed in secrecy. Hopefully this analysis will be helpful to other online service providers who receive such bogus requests masquerading as valid legal process. Fist tap Arnach.