Justices Agree on Unlawful Subpoena of Emails

WASHINGTON — In a victory for electronic privacy, the U.S. Supreme Court declined to rehear a lower court decision involving a subpoena of emails in a commercial litigation case.

Justices agreed with a February decision from the 9th U.S. Circuit Court of Appeals, holding that a civil litigant's subpoena seeking "all copies of e-mails sent or received by anyone" from an Internet service provider's computers, without limitation as to time or subject matter, was patently unlawful.

In the earlier decision, the 9th Circuit found that plaintiffs whose private email messages were disclosed could sue the defendant who issued the subpoena and his lawyer under the federal Stored Communications Act and the Computer Fraud and Abuse Act.

The court also held that the defendant’s access to the emails was “unauthorized” under both statutes even though the defendant’s attorneys obtained the emails by subpoena. Further, the 9th Circuit found that the federal Wiretap Act does not apply to such a case because it does not cover stored emails.

The case involved plaintiffs Douglas Wolf and Richard Buckingham, officers of Integrated Capital Associates Inc., who were embroiled in a suit against Alwyn Farey-Jones.

In the course of discovery, Farey-Jones sought access to ICA’s email, requesting his lawyer Iryna Kwasny to subpoena NetGate, ICA’s ISP.

Under federal rules, Kwasny was supposed to “take reasonable steps to avoid imposing undue burden or expense” on NetGate.

But Kwasny ordered production of “[A]ll copies of emails sent or received by anyone” at ICA, with no limitation as to time or scope.

NetGate, which was not represented by counsel, explained that the amount of email covered by the subpoena was substantial. But, according to the court, Farey-Jones did not relent.

The court said that NetGate then took what might be described as the “Baskin-Robbins” approach to subpoena compliance and offered defendants a “free sample” consisting of 339 messages.

It posted copies of the messages to a NetGate website where, without notifying opposing attorneys, Kwasny and Farey-Jones read them. Most were unrelated to the litigation, and many were privileged or personal, the court said.

When Wolf and Buckingham found out what had happened, they asked the court to quash the subpoena and award sanctions.

A lower court judge “soundly roasted” Farey-Jones and Kwasny for their conduct, finding that “the subpoena, on its face, was massively overbroad” and “patently unlawful,” that it “transparently and egregiously” violated the federal rules, and that defendants “acted in bad faith” and showed “at least gross negligence in the crafting of the subpoena.”

The judge granted the motion to quash and socked defendants with more than $9,000 in sanctions to cover Wolf and Buckingham’s legal fees.

While Farey-Jones did not appeal that award, Wolf, Buckingham and other ICA employees whose email was included in the sample filed a civil suit against Farey-Jones and Kwasny.

The ICA employees claimed that Farey-Jones and Kwasny violated the Stored Communications Act, the Wiretap Act, and the Computer Fraud and Abuse Act, as well as various state laws.

The lower court held that none of the federal statutes applied and declined jurisdiction over state law claims, but the 9th Circuit found otherwise on some of the counts.

But the San Francisco-based federal appeals court reversed the dismissal of the Stored Communications Act claim, affirmed dismissal of the Wiretap Act claim and reversed dismissal of the Computer Fraud and Abuse Act claim. The court also reversed the dismissal of the state claims.

The case is Farey-Jones vs. Theofel (Denial of Certiorari), No. 03-1565.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Princess Mindy Is LoyalFans' 'Featured Creator' for May

LoyalFans has named Princess Mindy as its Featured Creator for May.

Republicans Behind Oklahoma's New Age Verification Law Gleeful About Potential Pornhub 'Exit'

Republican Gov. Kevin Stitt signed into law last week the state’s version of the age verification legislation being sponsored around the country by anti-porn religious conservative activists.

Woodhull Freedom Foundation Debuts 'Fact Checked by Woodhull' Program

The Woodhull Freedom Foundation has launched its new "Fact Checked by Woodhull" program, which uses peer-reviewed research, compiled and analyzed by professional researchers, to debunk myths weaponized to justify the repression of sex, sexuality and gender expression.

Supreme Court Denies Stay of Texas' Age Verification Law

The U.S. Supreme Court has denied a request by Free Speech Coalition (FSC) and other plaintiffs to stay Texas’ controversial age verification law while the court decides on a petition that would effectively overturn it on constitutional grounds.

QueerCrush Relaunches Through YourPaysitePartner

QueerCrush.com has relaunched through YourPaysitePartner (YPP).

High Society Models Joins Pineapple Support as Sponsor

Talent agency High Society Models has joined the ranks of over 70 adult businesses and organizations committing funds and resources to Pineapple Support.

LoyalFans Announces Banksie Collaboration With I-15 Billboard

LoyalFans has announced its new collaboration with content creator Banksie (formerly Lindsey Banks) with a billboard on I-15, between L.A. and Las Vegas.

Chaturbate Reaches Settlement With Texas Over Age Verification

Chaturbate’s parent company, Multi Media, has reached a settlement with Texas regarding the state’s controversial age verification law, HB 1181.

Opinion: Why Device-Based Age Verification is the Key to Protecting Minors Online

Across the United States, state legislators on both sides of the aisle have attempted to tackle the crucial goal of preventing minors from accessing adult content.

TMZ: VMG's Mike Moz in Talks About 'Potential Collab' With Yeezy

Vixen Media Group’s Mike Moz told TMZ on Friday that the company has been discussing a potential collaboration with Kanye West’s brand Yeezy.

Show More