A federal judge has granted Chevron a broad and sweeping subpoena for data related to the $18.2 billion judgment against Chevron in Ecuador. The subpoena is trying to gain information on journalists and activists who may have been critical of Chevron.
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.
Can you say overreach? The Electronic Frontier Foundation represented the accountholders and fought the subpoenas in courts in California and New York on First Amendment grounds – to no avail. The judge was seemingly determined to see it Chevron’s way.
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 accountholders could benefit from First Amendment protections since the accountholders 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?
Talk about a sweeping precedent. If you can not demonstrate your citizenship, you can not be protected by the Constitution. That would essentially kill anonymous posting on the internet.
This case, along with the NSA’s vacuuming up of everyone’s private information, demonstrates that there needs to be some sort of cultural awakening to both the value of data and the rights people already have (let alone should have) in protecting it.