I think this tactic has many benefits, and few detriments. Let's break it down:

-Benefit 1: You look great to your users, and to the Internet community. The Internet community is almost universally opposed to Carnivore, and you will look like a hero by opposing it publicly and vocally. Your customers will know that you are doing all you can to protect them from it- they don't expect you to go to the point of obstructing justice- if you pledge to fight it in court, that's all you can do for them. They know you can't just defy the FBI and the courts. Plus, you get put on my Carnivore-Free ISPs list! :)

-Benefit 2: By editing your privacy policy, and issuing a new, edited version to your users (and the news outlets, and my site), you cover your butt as far as the Carnivore loophole goes. In my opinion, most ISP's current privacy policies (just like current wiretap laws) don't address a tool like Carnivore. I think there is room in those policies for a user to claim contract infringement, privacy violation, and so on, if an ISP allows Carnivore to rifle through their (non-warranted) data. Once it becomes known which ISPs have allowed this, maybe we will see one of those lawsuits. If you openly acknowledge that Carnivore causes a wrinkle in your policy, and make an attempt to address that within the policy, I think you would be seen as being responsible to your contractual agreement with your customers. ISPs whose policy says "we won't allow anyone into your data without a valid warrant" are lying to their customers, in my opinion. A warrant for info on Customer A is not a valid warrant to sort through the info of Customers B-Z. Write into your policy the belief that Carnivore warrants are not valid warrants, but that the FBI may require you to implement it anyway (if you fail to beat it in court).

-Benefit 3: The FBI will stay away from you. As I said before, the FBI doesn't need any more trouble on the Carnivore front anytime soon. If you make news with your declaration and new policy, they would be foolish to call your bluff. First, they must know that they could lose. Second, I think they are learning that any Carnivore news is bad Carnivore news- i.e., if they can avoid coverage of it, they will. Carnivore ends up looking bad and scary in about 90% of the news items it is featured in.

-Benefit 4: You will be an example for other ISPs, who will join you in your pledge. You are not the only person struggling to work out this little conundrum the FBI has dropped in your lap. Lots of ISPs realize the "Catch-22" position they are in. Having a large company like yours declare public opposition would give many other ISPs the push they need to do the same. Additionally, the release of a re-worked, anti-Carnivore privacy policy would create a template for other ISPs who are struggling to bridge the gap the Carnivore has created in their (now-invalid) privacy policies. This would have the triple effect of compounding the anti-Carnivore sentiment already floating around, giving you a peer group of anti-Carnivore ISPs, and creating an upsurge in awareness of all of those ISPs customers about Carnivore.

-Possible detriment 1: The FBI targets you for your stance. I think this is super-unlikely, for the publicity reasons stated above. But think of it this way. Right now, the FBI could unleash Carnivore on you, and you are stuck in the position of having to violate your users' privacy, etc. Plus you are put on the defensive, and you may be restricted in what you can say or do in response. If you have the public statement, plus an anti-Carnivore clause in your privacy policy, then the FBI is on the defensive, as soon as they knock on your door. It would be unlikely that a court would ignore your claim that you must put up a legal battle (after all, you have a contractual obligation to your customers to fight it, according to your re-vamped policy). Thus, more than likely, your court fight will be public (unlike Earthlink's, which happened before anyone knew about Carnivore). In any report on this public battle, you will be seen as a hero who is defending their users against this unpopular tool. I would hazard a guess that any legal costs would be made up for in the free good publicity you would get from it, even if you lose.

I don't recommend that you merely bluff on the legal fight- I would recommend you pursue it with vigor- and in that respect, planning ahead for that eventuality helps your position if the FBI does decide to use you as a Carnivore victim.

I'd be happy to talk further with any ISP that is trying to negotiate the legal complications Carnivore is causing with their efforts to maintain their users privacy. I am particularly interested in seeing a "Carnivore clause" inserted into privacy policies, and I will compose a draft clause soon for your consideration. You can e-mail me at lance@stopcarnivore.org for any advice, or to respond to my suggestions here.

Be Well, Be Free,