There's an interesting article at O'Reilly Network about a recent 9th Circuit case holding that "hacking by subpoena" could not only be abuse of the discovery process, but a violation of other laws.
The case is Theofel v. Farey-Jones, No. 02-15742, (9th Cir., August 28, 2003), and you can download the opinion from the 9th Cir. website, or Download file">from right here. The court considers "whether defendants violated federal electronic privacy and computer fraud statutes when they used a “patently unlawful” subpoena to gain access to e-mail . .."
Here's the scenario: In an earlier case, ICA was embroiled in a lawsuit against Farey-Jones. Farey-Jones's lawyer (one Iryna Kwasny) sought access to ICA's email with a subpoena to ICA's ISP, Netgate. Netgate, for some reason I cannot fathom, was not represented by counsel. NetGate then produced a bunch of privileged and irrelevant email and, without notifying opposing counsel, Kwasny and Farey-Jones read them. ICA filed a motion to quash the subpoena and for sanctions. Kwaney and Farey-Jones were sanctioned for issuing a subpoena that "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.” Which is pretty strong language for a federal magistrate.
The ICA guys (including ICA employees whose personal email had been produced) then brought a lawsuit against Kwasny and Farey-Jones under a number of federal and state statutes, including the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Wiretap Act, 18 U.S.C. § 2511 et seq., and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, as well as various state laws. The trial court dismissed the case and held that NetGate had authorized access. The Circuit Court reversed the trial court regarding the finding of acquiescence (basically with an analysis regarding the law of trespass), and reversed the dismissal under the Stored Communications Act. (The other claims were dealt with in ways that are going to take awhile to shake out back at the trial court).
The court is silent on whether NetGate should be smacked upside the head for being either wimps (rolling over for the subpoena) or morons (at least call your customer ferchrissake! This isn't a Patriot Act subpoena where they're going to put you on the rack ....) but did note:
"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."
Some folks are looking at the recent extortionate round of subpoenas by the RIAA and thinking "hmmmm.....how about a counteroffensive?"
Well, maybe. If you see litigation as either (1) a do-or-die necessity, (2) sport, or (3) a cash-flow opportunity. And you have the time, money, etc.
One of the best things about the opinion is that it gives a pretty good run-down of the current status of the case law regarding a variety of federal statutes. Chase those cites down. Better yet, wait about a month, and there will be beaucoup law review articles on this case.
BIG FAT DISCLAIMER: having some ideas about this case and posting some links does not constitute the practice of law.