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Tuesday, October 11, 2011 The Li'l ISP that Stood up to the Feds

Posted By on Tue, Oct 11, 2011 at 11:30 AM

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I way overpay for my monthly Internet service. There are a bunch of reasons:, my ISP, has great customer service. It almost never goes down. The website is simple and user-friendly. It updates it quickly with service info. When you call them, they talk to you like you're a fellow human, and not with fake friendliness, like you're either an idiot or a mark. They're competent. They're local. And they're not Comcast or AT&T (which, come to think of it, is the same reason as all the preceding ones.)

Lately, Sonic has provided me with another reason to stick with them: It stood up to the Justice Department's astonishingly extra-Constitutional practice of demanding information on Internet users and cellphone customers without a search warrant or any evidence that a crime has been committed. Sonic lost, but it also fought for, and won, the right to speak publicly about what happened, and to inform people the government is snooping on.

That person isn't a child-porn trafficker or a cyberterrorist, he's a "WikiLeaks volunteer." There's no indication that Jacob Appelbaum did anything illegal. There doesn't have to be. Under the 1986 Electronic Communications Privacy Act, there needs only to be "reasonable grounds" that seizing people's online information -- e-mail data, IP addresses, etc. -- would be "relevant and material" to an investigation.

It doesn't take a law professor to know that this runs directly afoul of the Fourth Amendment's guarantee against unreasonable searches and seizures. Sen. Patrick Leahy (D-VT) has called the law "outdated" and has asked for it to be updated for the Internet era. Here's the interesting thing about that: Leahy authored the law.

Some federal courts have called the law unconstitutional. Others have ruled otherwise. In the meantime, both the Bush and Obama administrations have defended it. DOJ officials, often using the fear of terrorism for cover, say their warrantless searches pass constitutional muster. But they don't make a very strong case. The real reason Attorney General Eric Holder likes it is because it makes his job much easier. But there's nothing in the constitution about that.

Holder said last year that there is an "active criminal investigation" of WikiLeaks under way. I'm not a huge fan of WikiLeaks. I think the wholesale release of classified information is dangerous, often to innocent people. But that's beside the point. Even when the targets are child-porn viewers or terrorists, we have to follow the rule of law. Otherwise, what are we defending?

In these searches, prosecutors often seek information like the e-mail addresses of people with whom subjects like Applebaum are corresponding. Presumably, that would include perhaps his Aunt Minnie and old high school friends, as well as people associated with WikiLeaks (who themselves might be innocent of any wrongdoing.)

If you think this isn't important, ask yourself whether you have ever corresponded with people you didn't know very well. If so, it's quite possible that you have corresponded with some child-porn-monger. How would you like your e-mail address to be forever attached to that person in government files, all thanks to a warrantless search?

And it gets worse: The law forbids Internet companies (others that have received such court orders from telling the subjects about them.) Such secrecy makes it impossible to know how often, and for what reasons, such searches are conducted. "Anecdotal data suggest that digital searches are becoming more common," says The Wall Street Journal, which broke the story about and Applebaum.

A couple of years ago, Google started publicizing the frequency of the federal government's requests for its customers' personal information. There were 4,601 of them in the last six months of last year. That number, though, includes constitutionally sound search warrants.

Like Google and Twitter -- which also has been inundated with requests from the feds -- Sonic has started standing up against legally questionable searches by the feds. In this case, it lost. CEO Dane Jasper told the Journal that mounting the defense was "rather expensive" but was "the right thing to do."

I wince every time I pay my outsized monthly ISP bill. But now I'll wince just a little less.

Dan Mitchell has written for Fortune, The New York Times, Slate, Wired, National Public Radio, The Chicago Tribune, and many others.

Follow us on Twitter at @TheSnitchSF and @SFWeekly

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