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Court: ISP subpoenas a 'grave' matter

In a ruling that buttresses electronic privacy rights, a federal appeals court says lawyers break the law when they try to subpoena e-mails to which they are not entitled.

In a decision that buttresses electronic privacy rights, a federal appeals court has ruled that attorneys violate the law when they try to subpoena e-mail messages to which they are not entitled.

The 9th U.S. Circuit Court of Appeals said last week that a lawyer was acting unreasonably when sending a subpoena to an Internet service provider, NetGate, that sought "all copies of e-mails sent or received by anyone" at a company called Integrated Capital Associates--the opposing party in the litigation.

"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," Judge Alex Kozinski wrote on behalf of a unanimous three-judge panel. The panel ruled that the attorney had violated two federal laws: the Stored Communications Act and the Computer Fraud and Abuse Act.

This case is unrelated to the ongoing controversy before the U.S. Court of Appeals for the District of Columbia Circuit, in which Verizon Communications is fighting the recording industry's use of the Digital Millennium Copyright Act's turbocharged subpoena process to unmask alleged peer-to-peer pirates. In the 9th Circuit case, the subpoenas invoked the Federal Rules of Civil Procedure, not U.S. copyright law.

But the 9th Circuit Court's blunt warning to attorneys not to abuse subpoenas might serve as word of caution to the Recording Industry Association of America, legal experts said, especially because the same appeals court may eventually hear a case in which Pacific Bell Internet Services (also known as SBC Communications) claims that the RIAA has abused the DMCA subpoena process.

The ruling should also give pause to companies that file so-called "John Doe" lawsuits to unmask online critics, said Paul Levy, an attorney at the nonprofit group Public Citizen who has specialized in Internet anonymity cases.

"It could provide a federal cause of action for someone whose identity was released where there is no notice process, where there's no process whatsoever, and the (Internet service provider) complies rather than giving notice," Levy said. "It's another way that the Does (the defendants) have to get back at the person drafting the subpoena who comes at them without justification."

In the case that led to last week's ruling, the attorney obtained 339 e-mail messages--including personal communications and mail that had no relevance to the lawsuit--from the ISP, NetGate. The trial judge fined the attorney $9,000 in sanctions but did not agree that the lawyer's overly broad subpoena had violated federal privacy laws.

The appeals court disagreed. The Stored Communications Act "reflects Congress' judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility," the three-judge panel concluded. "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."