Subpoenas as a Security Threat
Blog post from Ed Felten:
Usually when the threat model mentions subpoenas, the bigger threats in reality come from malicious intruders or insiders. The biggest risk in storing my documents on CloudCorp’s servers is probably that somebody working at CloudCorp, or a contractor hired by them, will mess up or misbehave.
So why talk about subpoenas rather than intruders or insiders? Perhaps this kind of talk is more diplomatic than the alternative. If I’m talking about the risks of Gmail, I might prefer not to point out that my friends at Google could hire someone who is less than diligent, or less than honest. If I talk about subpoenas as the threat, nobody in the room is offended, and the security measures I recommend might still be useful against intruders and insiders. It’s more polite to talk about data losses that are compelled by a mysterious, powerful Other—in this case an Anonymous Lawyer.
Politeness aside, overemphasizing subpoena threats can be harmful in at least two ways. First, we can easily forget that enforcement of subpoenas is often, though not always, in society’s interest. Our legal system works better when fact-finders have access to a broader range of truthful evidence. That’s why we have subpoenas in the first place. Not all subpoenas are good—and in some places with corrupt or evil legal systems, subpoenas deserve no legitimacy at all—but we mustn’t lose sight of society’s desire to balance the very real cost imposed on the subpoena’s target and affected third parties, against the usefulness of the resulting evidence in administering justice.
The second harm is to security. To the extent that we focus on the subpoena threat, rather than the larger threats of intruders and insiders, we risk finding “solutions” that fail to solve our biggest problems. We might get lucky and end up with a solution that happens to address the bigger threats too. We might even design a solution for the bigger threats, and simply use subpoenas as a rhetorical device in explaining our solution—though it seems risky to mislead our audience about our motivations. If our solution flows from our threat model, as it should, then we need to be very careful to get our threat model right.
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Winter • September 4, 2009 7:21 AM
But can you secure against a broken legal system at all?
“Not all subpoenas are good — and in some places with corrupt or evil legal systems, subpoenas deserve no legitimacy at all — but we mustn’t lose sight of society’s desire to balance the very real cost imposed on the subpoena’s target and affected third parties, against the usefulness of the resulting evidence in administering justice.”
I am not convinced.
The USA seems to be one of those bad places. Witness SCO versus IBM with discovery costs incurred that must run in the millions. With not a shred of evidence to start with.
SCO vs IBM and Psystar vs Apple are only two out of many cases were discovery materials were channelled to third parties.
Winter