Fishing expeditionists, proceed at your own risk: “Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.” Judge Alex Kozinski of the Ninth Circuit wrote the opinion in the case, in which commercial litigant Alwyn Farey-Jones via his attorney, Iryna Kwasny, demanded emails from his opponent, a company named Integrated Capital Associates. (Kevin Poulsen, Security Focus, Aug. 29; opinion (PDF) courtesy IP Watchdog). The Federal Rules of Civil Procedure “impose on parties seeking discovery an obligation to ensure that their requests do not impose an ‘undue burden or expense.'” (Jeff Cooper, Aug. 29).
More: At Security Focus, Mark Rasch writes: “This decision, while motivated by a legitimate desire to protect privacy and force lawyers to obey the rules, nevertheless dramatically expands the meaning and intent of the computer crime in a way that could permit hundreds of thousands of people to be prosecuted” for such instances of “unauthorized use” or “trespass” as sending unauthorized emails or putting at-work computers to personal use. “Let’s get real. What the lawyers did was issue an overbroad subpoena. … The defendants in this case did not break into any computers — and saying that they did is bad for those who value liberty and prosecutorial restraint.” (“Forgive Me My Trespasses”, Sept. 8).
Rasch’s article also contains an eminently quotable passage about “how a civil subpoena is actually issued in the United States”, though we can’t share his optimism that the results of the process will turn out to be “reasonable”: “A lawyer with a pending lawsuit asks the clerk of the court for a stack of blank subpoenas. They have the seal of the clerk of the court, and they read something like, BY ORDER OF THE CLERK OF THE COURT… for whatever district, you are COMMANDED to produce … whatever documents and records are listed on the subpoena.
“The lawyer and not the clerk or the judge, decides who to subpoena, when to subpoena, and what to ask for — and they almost always ask for the kitchen sink. In practice, a subpoena is invariably not an order, but more an invitation to negotiate compliance — sort of a modern day Arab Souk: you ask for everything, I give you nothing, and we eventually settle on something reasonable.”
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