Subpoena to Google, Yahoo and others

As we field more calls on electronic discovery, recall that federal law prohibits electronic communication services from disclosing “contents of a communication” [18 USC § 2702] which most courts deem to be the text of the email or text message. Facebook, Myspace, Twitter and Linkedln as well as email providers such as Gmail, Yahoo and Hotmail all fall in the this category.

A criminal subpoena may get you even the content of messages (and we get this material either from the electronic communication service providers -- or from the prosecutor) . However in a civil case, you can subpoena only basic information such as the name of the user of the account and other identifiers.

A court in Connecticut also explored a new avenue: divorcing parties may be ordered to exchange Facebook and dating site login and passwords.

Is reading email from another person's account a crime?

A Michigan DA is charging a man, Leon Walker, with unlawfully reading his then-wife's email, which showed she was having an affair with a man who once had been arrested for beating her in front of her son. Walker then gave the emails to her first husband, the child's father, to protect the boy. Most defense lawyers are commenting that they have never seen anyone charged before in these circumstances. Civil penalties may be justified, but as Walker's lawyer remarked; "This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It's to protect against identity fraud, to keep somebody from taking somebody's intellectual property or trade secrets. I have to ask: 'Don't the prosecutors have more important things to do with their time?'

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Email tracing: Finding out who is behind anonymous email accounts

Over the past few years, we have seen increasing numbers of cases involving requests to trace anonymous email accounts. Yahoo, Hotmail, Gmail, and countless other firms offer these sorts of free and anonymous accounts. Sometimes, the email headers have information that can help identify a city from where the emails were sent.

But increasingly, different databases are aggregating data in such a way that we can tie an IP address from the harassing email to a physical address; and then, using a 3rd database, confirm who resides at such an address and was likely the sender of the harassing emails. This is due to the practice of certain companies that log IP addresses and link them to physical addresses of customers who order items on the internet (and then sell the data to 3rd parties). As time passes, these databases are growing exponentially in power and scope--the Matrix of movie fame.

Following up with in-person interviews of the individuals, serving them a subpoena or summoning them to court usually solves the problem.