Virtual Search Warrants

The issue of "cybercrime" has always been sticky for ISPs and web hosting companies, who must balance their legal obligation to assist police investigations with the privacy rights of their customers. A news item this week in the Web Host Industry Review adds a new wrinkle: just how much physical access must data center operators provide to police and federal agencies?

Industry groups including NetCoalition and The U.S. Internet Service Provider Association have protested a Minnesota court ruling that requires police officers to be physically present when data sought under search warrants is retrieved. The case involves a child pornography case in which prosecutors in Minnesota issued a search warrant for information on Yahoo's servers in California. The warrant was faxed to Yahoo, which had employees fetch the information and send it back to Minnesota.

The defendant protested, asserting that having civilians (rather than police) conduct the search violated his Fourth Amendment rights against undue search and seizure. The judge in the case agreed, and ruled that in the future, police should be present when search warrants are executed by ISPs and web hosts.

The ISP industry groups say that allowing police access to their data centers would be disruptive and threaten the privacy of other customers, and is unnecessary because engineers and technicians would be needed to actually retrieve the information.

While I'm not familiar with all the facts of the Minnesota case, you'll forgive me if I'm cynical about the motivation of the defendant in raising the objection. Is this a legitimate Constitutional issue, or just a desperate bid to exclude damaging evidence?

One thing we've all learned since Sept. 11 is that security policies need to be taken seriously. Limiting physical access to data centers is a key element in securing America's telecom infrastructure. Those policies shouldn't be diluted by novel legal arguments by alleged child pornographers.