It’s not just the NSA that’s collecting massive amounts of personal data with judicial approval. In a ruling publicized by EarthRights International, a federal judge in New York approved a subpoena by Chevron to obtain any documents Microsoft has related to the identity of 30 anonymous individuals allegedly of interest in the litigation, including every IP address over a period of nine years.
The case involves an $18.2 billion judgment against Chevron in an Ecuador court, for massive environmental contamination from oil drilling. The Ecuadorian court found that Chevron had dumped toxic waste into Amazon waterways used by indigenous groups for drinking water and caused massive harm to the rainforest. Chevron responded by filing a lawsuit in U.S. court alleging that the plaintiffs engaged in a conspiracy to defraud the company.
As part of this lawsuit, Chevron has subpoenaed Google, Microsoft, and Yahoo to request all information related to the email addresses of more than 100 advocates, journalists, lawyers, and others. These individuals are not parties to the suit, but Chevron alleges that they are involved directly or indirectly in the litigation, and may have been outspoken critics of Chevron’s conduct. U.S. District Judge Lewis A. Kaplan explains the scope of what Chevron was seeking from Microsoft:
To summarize, if Microsoft still has and were to produce the requested information, Chevron would learn the IP address associated with every login for every account over a nine-year period. Chevron could identify the countries, states, or even cities where the users logged into accounts, and perhaps, in some instances, could determine the actual building addresses.
Chevron would not learn who logged into the accounts. That is to say that Chevron would know who created (or purported to create) the email accounts but would not know if there was a single user or multiple users for each account. Nevertheless, the subpoenaed information might allow Chevron to infer the movements of the users over the relevant period (at a high level of generality) and might permit Chevron to make inferences about some of the users’ professional and personal relationships.
Late last month, the court granted the first of these subpoenas in full, holding that the anonymous individuals were not entitled to First Amendment protection because they may not be U.S. citizens. As human rights lawyer Marissa Vahlsing explains:
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?
Given similar suggestions that NSA data collection is limited at least in some ways to non-U.S. citizens, this decision – much more public and available than the secret but reportedly expansive rulings of the Foreign Intelligence Surveillance Court – should give serious pause to those who think that limiting data collection to non-U.S. citizens protects the rest of us. It is worth noting that this case involves only the First Amendment, and not the Fourth, because parties in civil suits have a whole lot of leeway to access data via administrative subpoenas, which are typically not considered “searches” (and/or seizures) under the Fourth Amendment. Nonetheless, their speech, associations, and political activities, remain protected under the First.