Volume I

Issue : 5: September 4, 2003

• U.S. Court of Appeals (9th Cir.) Asserts Jurisdiction over Online Retailer
• Court Limits Extraterritoriality of the U.S. Copyright Act
• Amazon.com Launches Lawsuits in U.S. and Canada to Stop Spoofing
• Property and Trade Secret Rights Outrank Free Speech Rights in DVD Copying Code Case
• Parties To Litigation Do Not Hold Copyrights Over Examination for Discovery Transcripts
• U.S. Court of Appeals Upholds Statutory Damages for Domain Registered Prior to the Enactment of ACPA
• Major U.S. ISP EarthLink Sues John Doe Spammers in B .C. and Alabama
• Defence of Misuse Extended to Suppression of Criticism in Copyright
• Online Broadcasters Sue Recording Industry (RIAA)
• Sixth Circuit Court Strikes Down Michigan Wine Law as Unconstitutional
• Saskatchewan Court of Appeal Upholds Criminal Conviction For Online Marketing Scheme
• U.S. First - North Dakota Prosecutes a Man for Gambling on the Internet
• U.S. Appeals Court (9th Cir.) Rules Massively Overbroad Subpoena For E-Mails Led to Privacy Violation

Home > Volume I > Issue 5: September 4, 2003 > U.S. Appeals Court (9th Cir.) Rules Massively Overbroad Subpoena For E-Mails Led to Privacy Violation

U.S. Appeals Court (9th Cir.) Rules Massively Overbroad Subpoena For E-Mails Led to Privacy Violation

On August 28, 2003, the 9th Circuit Court of Appeals ruled that a "massively overbroad" subpoena issued by a litigant and his lawyer violated U.S. federal electronic privacy and computer fraud statutes.

Plaintiffs Wolf and Buckingham, officers of Integrated Capital Associates Inc. (ICA), are involved in commercial litigation in the state of New York against the defendant Farey-Jones. In the course of discovery, Farey-Jones sought access to ICA's e-mail. His lawyer, Kwasny, issued a subpoena to ICA's Internet Service Provider (ISP), NetGate, ordering the production of "[a]ll copies of emails sent or received by anyone" at ICA with no limitation as to time or scope.

Netgate, complying with the subpoena, posted copies of 339 messages to one of its websites where, without notifying opposing counsel, Kwasny and Farey-Jones read them. Most of the messages posted were unrelated to the litigation and many were privileged or personal. When Wolf and Buckingham discovered the postings, they successfully moved to quash the subpoena in Court. Judge Wayne Brazil in granting the motion to quash the subpoena stated that the defendants had acted in bad faith, and the subpoena they issued was "patently unlawful" and "massively overbroad".

Wolf and Buckingham and other ICA employees whose emails were disclosed filed a civil suit against Farey-Jones, and Kwasny, claiming the defendants violated the U.S. Stored Communications Act, the Wiretap Act, the Computer Fraud and Abuse Act, as well as various state laws. The District Court dismissed the claims without leave to amend.

The plaintiffs successfully appealed to the Ninth Circuit Court of Appeals. The Appeals Court reversed all the District Court on all issues except the Wiretap Act claim. The Court of Appeals stated that the defendants had, at the very least, constructive knowledge of the subpoena's invalidity. The Court added that the permission granted by Netgate to access the stored emails did not constitute valid authorization or consent as required by the Stored Communications Act. The Court also found that the defendant's cannot claim that they obtained the information from Netgate by consent because the "consent" was obtained by exploiting a known mistake that related to the essential nature of the access. The Court of Appeals added that the subpoena's falsity "transformed access from a bona fide state-sanctioned inspection into private snooping".

For a copy of the decision, visit:

http://caselaw.findlaw.com/data2/circs/9th/0215742P.pdf