|9th Circuit Holds That An Unlawful Subpoena to ISP for
E-Mail Can Violate the Stored Communications Act
8/28. The U.S.
Court of Appeals (9thCir) issued its
opinion [15 pages in PDF] in Theofel
v. Farey-Jones, a case regarding Rule 45 subpoenas (which are
essentially issued by the litigants' attorneys) which are directed to internet
service providers. The Appeals Court held that overbroad subpoenas for e-mail
messages may give rise to a private right of action under the Stored
Communications Act or the Computer Fraud and Abuse Act (but not the Wiretap
Act). This opinion should serve as a cautionary warning to aggressive attorneys who serve
Rule 45 subpoenas on ISPs, or other non-party entities that hold stored
electronic records. The opinion does not address subpoenas obtained under
Section 512(h) of the Digital Millennium Copyright Act (DMCA); but, the
analysis of the Court could be extended to these subpoenas as well.
Background. This case arose out of earlier civil litigation in New
York between two officers of Integrated Capital Associates (ICA), Douglas Wolf
and Richard Buckingham, and Alwyn Farey-Jones. Farey-Jones' lawyer in the New
York litigation was Iryna Kwasny.
Farey-Jones told Kwasny to subpoena ICA's internet service provider (ISP),
NetGate, for e-mail. Kwasny served a subpoena,
pursuant to FRCP 45,
on NetGate that ordered production of "[a]ll copies of emails sent or received
by anyone" at ICA, without limitation as to time or scope. Kwasny provided no
notice to ICA. NetGate, which was not represented by counsel, partially complied
by producing a sample of such e-mail. Much of it was unrelated to the litigation, and
personal or privileged.
Federal Rules of Civil Procedure (FRCP) 45(a)
provides that "The clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before service. An
attorney as officer of the court may also issue and sign a subpoena on behalf of
(A) a court in which the attorney is authorized to practice ..."
Rule 45(c) provides that "A party or an attorney responsible for the issuance
and service of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena."
When Wolf and Buckingham learned of the subpoena, and production, they moved
to quash the subpoena, and for sanctions. The District Court in New York found
that "the subpoena, on its face, was massively overbroad" and "patently
unlawful," that it "transparently and egregiously"
violated the FRCP. The District Court also found "bad faith" and "at least gross
negligence in the crafting of the subpoena." The Court quashed the subpoena, and
sanctioned Kwasny and Farey-Jones over $9000. Then, the present litigation began.
District Court. George Theofel,
who was one of the persons whose e-mail was given to Kwasny and Farey-Jones, and other
employees and officers of ICA, whose e-mail was produced, filed a complaint in
U.S. District Court (NDCal) against
Farey-Jones and Kwasny
alleging violation of the Stored Communications Act, 18 U.S.C. § 2701 et seq., the
Wiretap Act, 18 U.S.C. § 2511 et seq., the Computer Fraud and Abuse Act,
18 U.S.C. § 1030, and various state laws. The District Court dismissed the
federal claims, and then declined to exercise jurisdiction over the the state
Appeals Court. Judge Alex Kozinski wrote the opinion for the unanimous
three judge panel, reversing in part, affirming in part, and remanding. The
Court reversed the dismissal of the Stored Communications Act (SCA) claim,
affirmed the dismissal of the Wiretap Act claim, affirmed the dismissal of the
Computer Fraud and Abuse Act (CFAA) claim, but allowed plaintiffs leave to
amend, and instructed the District Court that since some of the federal claims
are restored, it should also exercise jurisdiction over the related state law
Stored Communications Act. First, the Court of Appeals addressed the
Stored Communications Act. It provides, at
18 U.S.C. § 2701,
that whoever "intentionally accesses without authorization a facility through
which an electronic communication service is provided ... and thereby obtains,
alters, or prevents authorized access to a wire or electronic communication
while it is in electronic storage", violates the Act.
18 U.S.C. § 2707
gives a private civil right of action to "any provider of electronic
communication service, subscriber, or other person aggrieved by any violation".
The subpoenaing defendants defended on the
grounds that the ISP, NetGate, had "authorized" the access to the e-mail. It had
voluntarily provided them to the defendants.
While the District Court was persuaded by this
argument, Judge Kozinski and his colleagues were not. He reasoned that the
private right of action under the Stored Communications Act is in the nature of
a tort action for trespass. Therefore, the Court will turn to definitions of
terms found in the common law of tort.
The Court wrote that "Like the tort of trespass, the Stored
Communications Act protects individuals' privacy and proprietary interests. The
Act reflects Congress’s judgment that users have a legitimate interest in the
confidentiality of communications in electronic storage at a communications
facility. Just as trespass protects those who rent space from a commercial
storage facility to hold sensitive documents, ... the Act protects users whose
electronic communications are in electronic storage with an ISP or other
electronic communications facility." (Citation omitted.)
The Court noted too that, just as the SCA provides that there is
no liability if the access was "authorized", "A defendant is not liable for
trespass if the plaintiff authorized his entry." But, the Court wrote that in
the law of trespass, there is no authorization, despite an overt manifestation
of consent, "if the defendant knew, or probably if he ought to have known in
the exercise of reasonable care, that the plaintiff was mistaken as to the
nature and quality of the invasion intended." That is, deceit can sometimes invalidate
consent. (The Court's cited authorities on tort law were primarily Prosser
and Keeton and the Restatement (Second) of Torts.)
The Court concluded that "Permission to access a stored
communication does not constitute valid authorization if it would not defeat a
trespass claim in analogous circumstances. Section 2701(c)(1) therefore provides
no refuge for a defendant who procures consent by exploiting a known mistake
that relates to the essential nature of his access."
The Court also offered a final word of caution to attorneys who use
Rule 45 subpoenas. "The subpoena power is a substantial delegation of authority
to private parties, and those who invoke it have a grave responsibility to
ensure it is not abused. Informing the person served of his right to object is a
good start, see Fed. R. Civ. P. 45(a)(1)(D), but it is no substitute for
the exercise of independent judgment about the subpoena’s reasonableness.
Fighting a subpoena in court is not cheap, and many may be cowed into compliance
with even overbroad subpoenas, especially if they are not represented by counsel
or have no personal interest at stake."
Wiretap Act. Next, the Court affirmed the dismissal of the Wiretap Act
claim. 18 U.S.C. §
2511 provides that whoever "intentionally intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication" violates the Act.
18 U.S.C. § 2520
provides a private right of action.
The Court held that its 2002
opinion [39 pages in PDF] in Konop v. Hawaiian Airlines, published at
302 F.3d 868, is controlling. In that case the Court held that the Wiretap Act
only applies to "acquisition contemporaneous with transmission", not to
acquisition of stored communications. The defendants in the present case only
acquired stored e-mail.
titled "9th Circuit Rules on Application of Wiretap Act and Stored
Communications Act to Secure Web Sites", August 23, 2002, also published in
TLJ Daily E-Mail
Alert No. 498, August 26, 2002.
Computer Fraud and Abuse Act. Finally, the Court affirmed
the dismissal of the CFAA claim, but reversed that portion of the District
Court's order that denied the plaintiffs leave to amend.
The CFAA provides a private cause of action against whoever
"intentionally accesses a computer without authorization or exceeds authorized
access, and thereby obtains ... information from any protected computer if the
conduct involved an interstate or foreign communication." See, 18 U.S.C. § 1030.
The District Court dismissed without leave to amend on the
theory that the CFAA does not apply to unauthorized access of a third party's
computer, and for failure to allege damages or loss. The Appeals Court held that
"The district court erred by reading an ownership or control requirement into
It elaborated that "Nothing in the provision's language supports
the district court’s restriction. Individuals other than the computer’s owner
may be proximately harmed by unauthorized access, particularly if they have
rights to data stored on it."
The defendants also argued that there was no violation of the
CFAA because the ISP had authorized the access. The Appeals Court rejected this
argument for the same reason that it rejected the same argument under the SCA
Hence, the plaintiffs might ultimately amend, and prevail in, their CFAA
Noerr-Pennington Doctrine. Finally, the defendants argued that they
are immune from liability under the SCA, the Wiretap Act, and the CFAA, because
they are protected by the Noerr Pennington doctrine, which, the Appeals Court
stated, "exempts petitioning of public authorities from civil liability on First
The Court wrote that "We are skeptical that Noerr-Pennington applies
at all to the type of conduct at issue. Subpoenaing private parties in
connection with private commercial litigation bears little resemblance to the
sort of governmental petitioning the doctrine is designed to protect.
Nevertheless, assuming arguendo the defense is available, it fails.
Noerr-Pennington does not protect ``objectively baseless´´ sham litigation."
Commentary: DMCA Subpoenas. This case is not about the DMCA. The
Appeals Court opinion does not even reference the DMCA.
Nevertheless, it should be noted that
17 U.S.C. § 512(h)
provides, in part, that "A copyright owner or a person authorized to act on the
owner's behalf may request the clerk of any United States district court to
issue a subpoena to a service provider for identification of an alleged
infringer in accordance with this subsection." Subsection 512(h)(5) then
provides, in part, that "Upon receipt of the issued subpoena, ... the service
provider shall expeditiously disclose to the copyright owner or person
authorized by the copyright owner the information required by the subpoena,
notwithstanding any other provision of law and regardless of whether the service
provider responds to the notification."
Section 512 subpoenas are issued by a court clerk, and must be supported by a
sworn declaration. However, the clerk's role is largely ministerial. Subsection
512(h)(4) provides that "If the notification filed satisfies the provisions of
subsection (c)(3)(A), the proposed subpoena is in proper form, and the
accompanying declaration is properly executed, the clerk shall expeditiously
issue and sign the proposed subpoena ...". Moreover, there is no requirement
that notice be given to the alleged infringer, or anyone other than the clerk of
the court, and the service provider.
Rule 45 subpoenas, like subpoenas issued by the District Court under Section
512, are both essentially drafted by the litigating attorneys, served upon
non-party service providers, and seek information about subscribers (who may not
be a party to any proceeding). While the ISPs are usually large entities, like
Verizon, that are well represented by legal counsel, some ISPs are small,
unrepresented, and like NetGate, apt to comply with an illegal subpoena because
they are, as Judge Kozinski noted, "cowed into compliance with even overbroad
Hence, the reasoning of the Appeals Court in the Theofel case might
also be extended to Section 512 subpoenas. And so, a subscriber of an ISP that
provided stored communications information about that subscriber to the
copyright holder, pursuant to a Section 512 subpoena that was egregiously
overbroad, might assert a claim against the copyright holder for violation of
the Stored Communications Act or the Computer Fraud and Abuse Act.
Of course, Section 512(f) already provides a private cause of action against
copyright holders who "knowingly materially misrepresents ... that material or
activity is infringing". But, the two remedies are different. Also, the SCA and
CFAA remedies are broader. For example, the Section 512 requires knowledge,
while the mental state in the Theofel case was "bad faith" and "at least
For more information on Section 512 subpoenas, see TLJ stories about the
dispute between Verizon and the Recording
Industry Association of America (RIAA). See, stories titled "RIAA Seeks to
Enforce Subpoena to Identify Anonymous Infringer" in
TLJ Daily E-Mail
Alert No. 499, August 27, 2002; "Verizon and Privacy Groups Oppose RIAA
Subpoena" in TLJ
Daily E-Mail Alert No. 501, September 4, 2002; "District Court Rules DMCA
Subpoenas Available for P2P Infringers" in
TLJ Daily E-Mail
Alert No. 588, January 22, 2003; "Law Professor Submits Apocalyptic
Declaration in RIAA v. Verizon" in
TLJ Daily E-Mail
Alert No. 596, February 3, 2003; "DOJ Files Brief in Support of RIAA in
Verizon Subpoena Matter" in
TLJ Daily E-Mail
Alert No. 646, April 22, 2002; "District Court Rules That A DMCA § 512(h)
Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution"
in TLJ Daily E-Mail
Alert No. 649, April 25, 2003; and "Court of Appeals Denies Stay in RIAA v.
Verizon" in TLJ
Daily E-Mail Alert No. 674, June 5, 2003. See also,
titled "Pacific Bell Internet Services Sues RIAA Over Infringer Subpoenas", July
This case is George Theofel, et al. v. Alwyn Farey-Jones and Iryna Kwasny, Nos. 02-15742 and 03-1530, appeals from the U.S. District Court for the
Northern District of California, D.C. No. CV-01-04166-MMC, Judge Maxine Chesney presiding.
|There will be no issue of the TLJ Daily E-Mail Alert on
Labor Day, Monday, September 1, 2003.
|FCC Speeds LPFM Licensing
8/28. The Federal Communications Commission's
(FCC) Media Bureau (MB) announced a settlement period for the mutually exclusive
Low Power FM (LPFM) new station applicants. The MB stated that "This universal
settlement period is designed to facilitate the rapid licensing of new LPFM
stations." See, FCC
release [3 pages in PDF]. This settlement period applies to applications
Attachment A [6 pages in PDF].
On August 20, FCC Chairman
Michael Powell announced
a "Localism in Broadcasting Initiative". This speeding of licensing of LPFM
stations is a part of that initiative. See, story titled "Powell Announces Localism in Broadcasting
Initiative" in TLJ Daily E-Mail Alert No. 722, August 20, 2003. See also, FCC
release on this initiative.
The FCC elaborated that "During this filing period, the Commission will waive Section
73.871 to permit settling applicants to file major change amendments specifying
new FM channels. This limited waiver policy will allow settling applicants to
use all available FM channels to resolve technical conflicts and obtain
|SEC Criticizes Oklahoma Prosecution of
8/27. The Securities and Exchange Commission
(SEC) criticized the state of Oklahoma for bringing criminal charges against MCI
WorldCom. On August 27, Oklahoma charged WorldCom, Bernie Ebbers, Scott Sullivan, and
other former employees of WorldCom by
[PDF] with felony violations of the Oklahoma Securities Act.
The SEC stated in a
release that "Our goal
and our hope is to coordinate federal and state enforcement actions in a manner
that results in the most effective and efficient enforcement possible for
violators of our securities laws. As such, we were disappointed that the SEC was
not contacted by the Oklahoma Attorney General about the actions he announced
The SEC added that "We have closely coordinated our efforts
with those of the United States Attorney's Office for the Southern District of
New York, which has criminally charged five of WorldCom's former employees. We
hope that the Oklahoma Attorney General's actions will not jeopardize the
criminal cases being prosecuted by the U.S. Attorney's Office or the ongoing
8/28. The U.S. District Court (DC)
issued an order [2 pages
in PDF] in In Re Verizon Internet Services striking
Doe's Motion to Expedite Hearing on Jane Doe's Motion to Stay. The Court
summarized the proceeding. "On July 9, 2003, a subpoena was issued to Verizon
Internet Services, Inc. by this Court. On August 7, 2003, Recording Industry
Association of America ("RIAA") moved to enforce the subpoena. On August 21,
2003, intervenor applicant, Jane Doe ("Doe"), moved for leave to intervene, to
stay the motion to enforce, and to expedite the hearing on her motion to stay."
The Court noted that, in violation of the local rules, "Doe's motion to expedite
the hearing was not accompanied by a proposed order nor any indication that RIAA
8/28. The Boards of Directors of the Competitive
Telecommunications Association (CompTel) and the
Association for Communications Enterprises
(ASCENT) announced that they have approved the proposed merger of the two
groups. The merger still requires approval of the memberships. See, CompTel
8/28. The Department of Justice's
Antitrust Division published a short
titled "An Antitrust Primer for Federal Law Enforcement Personnel". This
document provides "federal law enforcement personnel with a quick overview of
antitrust conspiracies that constitute felony violations of federal law".
8/28. The Federal Communications Commission
(FCC) announced that it is seeking nominations for membership on its Intergovernmental
Advisory Committee (IAC), which was
previously known as the Local and State Government Advisory Committee. The FCC
stated that this Committee provides "ongoing advice and information to the
Commission on a broad range of telecommunications issues of interest to state,
local and tribal governments, including cable and local franchising, public
rights-of-way, facilities siting, universal service, broadband access, barriers
to competitive entry, and public safety communications, for which the Commission
explicitly or inherently shares responsibility or administration with local,
county, state, or tribal governments." The deadline to submit nominations is
September 29, 2003. See, FCC
release [1 page in PDF] and FCC
notice [3 pages in PDF].
8/26. The Office of the U.S. Trade Representative (USTR)
document [9 pages in PDF] titled "U.S. Comments on Chairman's Cancun
Ministerial Text: General Council Discussion". The 5th
World Trade Organization (WTO) Ministerial
Conference will be held in Cancún, Mexico on September 10-14, 2003, to discuss
the Doha Development Agenda. See, WTO's
Cancun web site.
|Monday, September 1
Labor Day. The FCC, USITC and other federal government agencies will be closed.
The National Press Club will be closed.
|Tuesday, September 2
9:30 AM. The Senate will return from its August recess. The Senate will
begin consideration of
the Labor/HHS and Education Appropriations bill.
The Treasury Department's and the
Internal Revenue Service's (IRS) will hold a
public meeting regarding their notice of proposed rulemaking (NPRM)
regarding regulations that "affect certain taxpayers who participate in the
transfer of stock pursuant to the exercise of incentive stock options and the
exercise of options granted pursuant to an employee stock purchase plan
(statutory options)." See,
notice in the Federal Register, June 9, 2003, Vol. 68, No. 110, at Pages 34344 - 34370.
|Wednesday, September 3
2:00 PM. The House will return from its August recess. Votes will be
postponed until 6:30 PM.
1:00 PM. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet will
hold a hearing titled "Digital Dividends and Other Proposals to
Leverage Investment in Technology". The hearing will be webcast. See,
Location: Room 2123, Rayburn Building.
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its notice of proposed
rulemaking (NPRM) regarding making more spectrum available for unlicensed
devices, including WiFi, in the 5 GHz band.
See, stories titled "FCC Adopts NPRM to Increase Unlicensed Spectrum" in
TLJ Daily E-Mail
Alert No. 663, May 16, 2003; "FCC Releases NPRM Regarding Increasing Amount
of Unlicensed Spectrum" in
TLJ Daily E-Mail
Alert No. 674, June 5, 2003, and "Delegates Discuss World
Radiocommunications Conference" in TLJ Daily E-Mail Alert No. 703, July 22,
2003. See also,
in the Federal Register, July 25, 2003, Vol. 68, No. 143, at Pages 44011 - 44020.
This is ET Docket No. 03-122. The FCC adopted this NPRM on May 15, 2003, and
released June 4, 2003.
|Thursday, September 4
10:00 AM. The House will meet for legislative business.
The Federal Communications Commission's
(FCC) changes to its media ownership rules, announced on June 2, 2003, take
notice in the Federal Register that recites and describes the rules changes.
See, Federal Register, August 5, 2003, Vol. 68, No. 150, at Pages 46285 - 46358.
|Friday, September 5
9:00 AM. The House will meet for legislative business.
9:30 - 11:30 AM. The American Enterprise Institute
(AEI) will host a seminar titled "The New World of E-Commerce Taxation".
The speakers will be Michael Greve (AEI),
Daniel Shaviro (NYU School of Law), and Kevin
Hassett (AEI). See,
notice. Location: 12th Floor, AEI, 1150 17th
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its
Notice of Inquiry [21 pages in PDF] in its proceeding titled "In the Matter
of Inquiry Regarding Carrier Current
Systems, including Broadband over Power Line Systems". See,
notice in the Federal Register, May 23, 2003, Vol. 68, No. 100, at Pages 28182 - 28186.
See also, story titled "FCC Announces NOI Regarding Broadband Over Powerlines"
in TLJ Daily E-Mail Alert No. 628, April 24, 2003, and story titled "FCC
Releases NOI on Broadband Over Power Lines" in TLJ Daily E-Mail Alert No. 656,
May 7, 2003.This is ET Docket No. 03-104. For more information, contact Anh Wride at
202 418-0577 or firstname.lastname@example.org.
12:00 NOON. Deadline to submit requests to testify orally at the September
18, 2003 hearing of the U.S. Trade
Representative's (USTR) interagency Trade Policy Staff Committee (TPSC) to
assist it in preparing its annual report to the Congress on the People's
Republic of China's compliance with the commitments that it made in connection
with its accession to the World Trade
Organization (WTO). See,
notice in the Federal Register, July 21, 2003, Vol. 68, No. 139, at Pages
43247 - 43248.
|Monday, September 8
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Consumer Federation of America v.
FCC, No. 02-1337. Judges Edwards, Randolph and Garland will preside.
Location: 333 Constitution Ave. NW.
10:00 AM. The Supreme Court will
hear oral argument in McConnell v. FEC, a constitutional challenge to the
McCain Feingold campaign finance act. See, June 5, 2003
List [4 pages in PDF] at pages 3-4.
Deadline to submit reply comments to the
Federal Communications Commision (FCC) in response to its
notice of proposed rulemaking (NPRM) [7 pages in PDF] regarding the
draft Nationwide Agreement [28 pages in PDF] of the FCC, the Advisory
Council on Historic Preservation, and the National Conference of State
Historic Preservation Officers, regarding undertakings for communications
facilities, including communications towers and antennas, under the
National Historic Preservation Act (NHPA). This proceeding is titled "In the
matter of Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process". It is WT Docket No. 03-128. For
more information, contact Frank Stilwell at 202 418-1892 or
email@example.com. See, story titled
"FCC Announces NPRM Regarding Communications Facilities and the National
Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003.
notice in the Federal Register, July 9, 2003, Vol. 68, No. 131, at Pages
40876 - 40887.
|Tuesday, September 9
9:00 AM - 3:00 PM. The
Executive Office of the President's (EOP)
Office of Science and Technology Policy's (OSTP)
President's Council of Advisors
on Science and Technology (PCAST) will meet. The agenda includes (1)
discussion of the status of the work of its workforce education
subcommittee, (2) discussion of the preliminary draft findings of its
information technology manufacturing competitiveness subcommittee, and (3) a
continuation of its discussion of nanotechnology and its review of the federal
National Nanotechnology Initiative. See,
notice in the Federal Register, August 27, 2003, Vol. 68, No. 166, at
Pages 51577 - 51578. Location: Room 100 of the National Academy of Sciences
Building, 500 5th Street, NW.
11:00 AM. The Cato Institute will host
a panel discussion titled "Will Internet Telephony Bring about a Revolution
in Telecom Policy?". The speakers will be
Scott Marcus (Senior
Advisor for Internet Technology at the FCC), Brad Ramsay
(National Association of Regulatory Utility
Commissioners), Link Hoewing (Verizon), Marilyn Cade (AT&T), and Jeff
Pulver (Pulver.com). See,
notice. Lunch will follow
the program. Location: Cato, 1000 Massachusetts Ave., NW.
|About Tech Law Journal
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