After more than eight months of silence, U.S. District Court Judge Lewis Kaplan recently issued a long-awaited decision on the enforceability of a subpoena served by Chevron on Microsoft in connection with Chevron’s lawsuit claiming that it has been the victim of a conspiracy in the $18.2 billion judgment against it for massive environmental contamination in Ecuador. But Kaplan’s decision begs more questions than it answers.
The sweeping subpoena was one of three issued to Google, Yahoo! and Microsoft, demanding IP usage records and identity information for the holders of more than 100 email accounts, including environmental activists, journalists, and attorneys. Chevron’s subpoena sought personal information about every account holder and the IP addresses associated with every login to each account over a nine-year period.
This could allow Chevron to determine the countries, states, cities or even buildings where the account-holders were checking their email so as to “infer the movements of the users over the relevant period and might permit Chevron to makes inferences about some of the user’s professional and personal relationships.” (see Order, below, p6). Confronted with this affront to their privacy and rights of speech and association, the account-holders, represented by ERI and Electronic Frontier Foundation (EFF), brought “motions to quash” the subpoenas in courts in California and New York on First Amendment grounds.
Judge Kaplan, who presides over Chevron’s conspiracy lawsuit in the Southern District of New York, and who has been accused of prejudice against the Ecuadorians and their lawyers, managed to sit by “special designation” in the Northern District of New York so that he could decide the enforceability of the subpoena to Microsoft as well.
And decide he did. Kaplan’s decision upheld Chevron’s sweeping subpoena with an argument that is as breathtaking as the subpoena itself. According to Judge Kaplan, none of the account holders could benefit from First Amendment protections since the account holders had “not shown that they were U.S. citizens.”
Now, let’s break this down. The account holders in this case were proceeding anonymously, which the First Amendment permits. Because of this, Judge Kaplan was provided with no information about the account holders’ residency or places of birth. It is somewhat amazing then, that Judge Kaplan assumed that the account holders were not U.S. citizens. As far as I know, a judge has never before made this assumption when presented with a First Amendment claim. We have to ask then: on what basis did Judge Kaplan reach out and make this assumption?
Whether or not this assumption was correct – and whether or not it matters – the account-holders were never given the chance to submit evidence on the question of their citizenship. Judge Kaplan is hoping he made a lucky guess, but First Amendment rights, and the account-holders they protect, are entitled to more respect than judicial guesswork.