ISPs challenge ruling on searches of user data

Internet portal Yahoo Inc. and a coalition of online trade associations have gone to U.S. federal court in St. Louis in an attempt to overturn a lower court’s ruling that requires police to be present during a search of user information.

Sunnyvale, Calif.-based Yahoo, as well as the Computer and Communications Industry Association, NetCoalition and the United States Internet Service Providers Association (USISPA), all based in Washington, have filed a brief with the U.S. 8th Circuit Court of Appeals seeking to overturn the decision by a Minneapolis judge who ruled that evidence gathered about a convicted child molester from Yahoo’s records had to be thrown out because police weren’t present during the search.

“From an industry perspective, this decision will be extremely burdensome on both Internet companies and law enforcement and maybe potentially more invasive of personal privacy,” said Kevin McGuiness, executive director of NetCoalition.

Stewart Baker, general counsel of the USISPA, also said the ruling could cause major problems for Internet service providers and law enforcement authorities. “This is an extraordinarily dangerous thing to do,” Baker said.

The ruling could mean that police would either have to stand behind IT professionals while they search through records or conduct the searches themselves. Baker said such a process could risk the exposure of private information of thousands of users and that a mistake by a police officer while searching for records could bring down a system.

But the attorney for Dale Bach, a Minneapolis man facing federal child pornography charges and a state charge of sex with a minor, said that doesn’t matter. Attorney William Orth said the Fourth Amendment to the Constitution sets down specific criteria for searches that are further codified in federal and state laws. In his client’s case, the search warrant was faxed to Yahoo.

Orth said that if Yahoo and other service providers don’t like the judge’s ruling, they must ask Congress to legislate changes. In the meantime, his client should go free, he said.

However, St. Paul Police Sgt. Brook Schaub, who arrested Bach, rejected that argument. Schaub said there aren’t enough police officers available with the computer expertise to conduct the searches themselves or to be physically present each time a service provider is served with a search warrant.

Internet service providers receive between 400 to 1,000 search warrants each month by law enforcement officials, according to industry sources.

Schaub, who has been on St. Paul’s Internet Crimes Against Children Task Force for five years, said he wouldn’t want to sit down at a computer terminal and search a service provider’s records for data that could be stored in computers all over the country or the world.

“Even the most technically astute police officer could cause a whole system to crash,” Schaub added.

No date has been set to hear the arguments in the case. In the meantime, the industry hopes that legislation unanimously passed by the House Judiciary Committee could offer some relief.

The bill, which U.S. Rep. Melissa Hart (R-Pa.) originally filed, would change the federal statute concerning search warrants to allow Internet service providers to comply with police search requests without a police officer being present. The bill, which has gained bipartisan support, still awaits a vote in the House before moving on to the Senate.