Court Gives Chevron Access To Nine Years Of Americans' Email Metadata

from the seems-a-bit-extreme dept

Tue, Jul 23rd 2013 7:03am — Mike Masnick

For a few years now, we've been following a rather troubling legal fight between people in Ecuador and Chevron -- the oil giant that has been in a long-term legal battle with people in Ecuador over some of its actions in that country. A few years ago, we wrote about how Chevron was ordering a documentary filmmaker to turn over cut footage, claiming that it might exonerate the company (the filmmaker tried to hold it back, claiming it was protected under journalist shield rules). However, last fall, we noted something perhaps even more troubling. Chevron had issued subpoenas seeking various email info from Google, Yahoo and Microsoft going back years. As we noted at the time, they weren't seeking the content of the email, but the were seeking what many more people are now familiar with as "metadata." But, metadata can be quite revealing.

When we wrote about this case a year ago, it was under the context of one person, Kevin Heller, whose data was sought, and him successfully fighting back (with some help from the ACLU) getting Chevron to drop the request for his info. But, as for everyone else's info? Mother Jones alerts us to the news that a judge in NY recently said it was okay for Chevron to get all that metadata, in some cases going back nine years.

...a federal court granted Chevron access to nine years of email metadata—which includes names, time stamps, and detailed location data and login info, but not content—belonging to activists, lawyers, and journalists who criticized the company for drilling in Ecuador and leaving behind a trail of toxic sludge and leaky pipelines. Since 1993, when the litigation began, Chevron has lost multiple appeals and has been ordered to pay plaintiffs from native communities about $19 billion to cover the cost of environmental damage. Chevron alleges that it is the victim of a mass extortion conspiracy, which is why the company is asking Google, Yahoo, and Microsoft, which owns Hotmail, to cough up the email data. When Lewis Kaplan, a federal judge in New York, granted the Microsoft subpoena last month, he ruled it didn't violate the First Amendment because Americans weren't among the people targeted.

Leaving aside the fact that the court thinks it's okay to do this even if it's just "non-Americans" who have their privacy violated here, Mother Jones points out that this claim that it only targeted non-Americans isn't, in fact, true. Pesky details.

Now Mother Jones has learned that the targeted accounts do include Americans—a revelation that calls the validity of the subpoena into question. The First Amendment protects the right to speak anonymously, and in cases involving Americans, courts have often quashed subpoenas seeking to discover the identities and locations of anonymous internet users. Earlier this year, a different federal judge quashed Chevron's attempts to seize documents from Amazon Watch, one of the company's most vocal critics. That judge said the subpoena was a violation of the group's First Amendment rights. In this case, though, that same protection has not been extended to activists, journalists, and lawyers' email metadata.

The Electronic Frontier Foundation (EFF) represents 40 of the targeted users—some of whom are members of the legal teams who represented the plaintiffs—and Nate Cardozo, an attorney for EFF, says that of the three targeted Hotmail users, at least one is American. Cardozo says that of the Yahoo and Gmail users, "many" are American.

This seems like a pretty big problem, given the rationale of the judge initially. Beyond that, just the basic chilling effects from finding out that a giant company could get access like this to so much metadata on a large list of its critics is fairly incredible. As the article notes, while subpoenas on people who aren't actually parties to a lawsuit are "routine," they're not supposed to be mass fishing expeditions, which they appear to be in this case.

And, of course, even the whole "well they're not Americans so the First Amendment doesn't apply" thing is highly questionable -- since many of the accounts are anonymous internet users, and the First Amendment does protect online anonymity and there's no way for Chevron or the judge to know if the anonymous users are Americans or not.

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Filed Under: ecuador, email, first amendment, metadata, privacy
Companies: chevron, google, microsoft, yahoo

31 Comments

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Ninja (profile), 23 Jul 2013 @ 6:46am

Beyond that, just the basic chilling effects from finding out that a giant company could get access like this to so much metadata on a large list of its critics is fairly incredible.

And yet it's on par with what the US Govt is doing with the Americans themselves.

This is yet one more reason to avoid American companies for your internet needs. I've read that usage of DuckDuckGo and other alternatives to the main companies soared after all the leaks (https://prism-break.org). Hopefully the hit will be powerful enough to make these companies steer into alignment with their customers privacy and fight back against the US Govt. Money speaks louder.
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assemblerhead (profile), 23 Jul 2013 @ 7:17am

Are there any Internet Search Engines that are not Government run, or based ( in / on ) ( US Companies / Networks )?

I read a posting saying DuckDuckGo used Bing as its back end. It runs or is hosted on Verizon virt servers inside the US. The server crypt key is RSA and never changes. Easy access for the NSA. Easy for the NSA to decrypt all of your searches.
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Anonymous Coward, 23 Jul 2013 @ 7:19am

For a country that's so big on racial equality America sure has some funny ideas about how people should be treated based on where they were born...
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Anonymous Coward, 23 Jul 2013 @ 7:30am

United Corporations of America
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Anonymous Coward, 23 Jul 2013 @ 7:40am

so many things have gone wrong in USA and all through greed and control. first thing i thought of here was why has information in any form been kept be anyone for 9years? that's longer than being able to claim tax back. then you have yet another judge that doesn't give a flying fuck about the Constitution, First Amendment of uncle Tom Cobbly! this has been done simply because it is a massive oil company. had it have been the likes of an ordinary person, the judge would have kicked out any request for any data going back more than 6 months and used the First Amendment as the reason! as if it wasn't enough to have such bias arse hats in the security agencies, the government and the White House, the courts are doing their very best to equal if not overtake them as far as being pricks is concerned!
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Jim Harper (profile), 23 Jul 2013 @ 7:40am

Not Sure That This Ranks as an Outrage
It's data about participants in the dispute, not ALL Americans, NSA-style, right? That makes it pretty much ordinary discovery for litigation. I suppose if the merits of the lawsuit itself are weak, getting this data is also weak, but it's not an additional, separate outrage for a court to require access to data relevant to the dispute.
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Anonymous Coward, 23 Jul 2013 @ 7:53am

Re:
Duckduckgo uses bing so that is a piss poor alternative A to google and B to getting away from bling.
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Nate, 23 Jul 2013 @ 7:59am

Re: Not Sure That This Ranks as an Outrage
Nope, the folks targeted are not parties to the litigation, hence the unusual nature of the subpoenas. Chevron has refused to make any showing about why it needs the data or how it's relevant.
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Guardian, 23 Jul 2013 @ 8:05am

ohhhhhhhh ohhhh ohhhhhh
yup this isnt gonna end well for you yankies

lol ohhhhhh
"ya ma needs an enema"
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Guardian, 23 Jul 2013 @ 8:14am

new hosting company
INTENTIONALLY WILL MARKET SELF ON NOT BEING IN THE USA AND BEING IN CANADA WHERE WE ACTUALLY UPHOLD PRIVACY...and have no warrantless spy activity allowed ....

not saying the nsa isnt spying BUT if we find out we will nip such in the butt.

The above will become more and more popular to do and it will destroy what is left of your nation as the brain drain will flow out and all one has to do is start tossing pictures of detroit about...and its over USA been a good ride eh...but its over...funny 75% of your debt is owned by your own people cause when you truly default its gonna be them that doesn't get paid back not the rest of the planet which is at least one good thing.
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anonymouse, 23 Jul 2013 @ 8:39am

Re: new hosting company
I am surprised with the amount of intelligence in the UK that they have not been at the forefront of tech, damn all the big sites are American Google Microsoft Yahoo Amazon , when will the UK start creating sites that are based and run from servers in the UK and serve only the EU.
Is it that the banks in the Uk don't want to take a chance on start-ups, maybe this is something the UK government should be looking into more.
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Anonymous Coward, 23 Jul 2013 @ 8:44am

Re:
America sure has some funny ideas about how people should be treated based on where they were born...

No. Judge Kaplan has some funny ideas about a �textual analysis of the Constitution�.

In 1990, the Supreme Court decided that when a foreign government (Mexico) authorizes a search of a home within the territorial jurisdiction of that government (i.e. a home in Mexico), the warrant requirement of the Fourth Amendment does not apply. That shouldn't be too controversial, actually, even though there were additional pertinent circumstances which made that into a case at all.

In the present case, Judge Kaplan has read that Supreme Court decision on the reach of the Fourth Amendment� and well, just substitued the ordinal �First� in place of the ordinal �Fourth�. �� He's a senior judge (born 1944�took senior status in 2011), and I guess he might have been having one of those �senior moments�. I don't know whether Alzheimer's disease runs in his family�
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PopeRatzo (profile), 23 Jul 2013 @ 8:53am

The real bad thing
Now the most frightening part of the NSA's ubiquitous surveillance regime starts to become clear.

It's not bad enough that the government gets unfettered access to Americans' communications, but now it turns out that corporations have their eyes on it, too.

I don't believe for a second that the NSA program was about "terrorism". It was always about preventing the social unrest that the economic concentration in the hands of a few has made inevitable. And, it was about corporate power, because concentrated wealth and power are good for business (as long as your business is part of the elite).

There really exists a petulant notion among the corporate elite that you really can't be allowed to make your own decisions - about where you work, what you buy, how much your labor is worth and how much the consumer goods are worth. They don't want any communication among consumers. They are afraid that if people talk to one another, bad things can happen unless that conversation is strictly managed. Corporations have seen what happens when consumers start comparing notes about a given company. Remember Farmers' Insurance? The elite dodged a bullet with the Occupy movement. They were able to manage the message, discredit occupy and go on as usual. They were not able to manage the discussion about Monsanto and now that company's name is synonymous with evil.

In end-game capitalism, freedom is bad for business, and the corporate/intelligence apparatus is all about the business.
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PRMan, 23 Jul 2013 @ 10:27am

Re:
Baidu? Yandex?
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Josh in CharlotteNC (profile), 23 Jul 2013 @ 10:34am

Re: Not Sure That This Ranks as an Outrage
Is it standard practice to get this much information about when/where/how often the lawyers on the other side of the courtroom are communicating with their clients? And about journalists and activists not party to the suit?
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Anonymous Coward, 23 Jul 2013 @ 10:39am

There seems to be an ongoing theme of judges, politicians and law makers making decisions that are technologically inept and do not get the help of younger tech people to give them perspective. they just charge forward without understanding the underlying technology or the implications of their decisions, kind of like children.

Some of the judges and politicians make irresponsible rulings and laws based on nothing more than what the side with the most money represents as being the truth. This is not informed consent its ignorance and Its fully broken.
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Jim Harper (profile), 23 Jul 2013 @ 11:40am

Re: Not Sure That This Ranks as an Outrage
Chevron has indeed shown why it needs the information. It has a RICO case. To prove RICO allegations, you have to know a lot about people's communications with one another.

I'm not endorsing the case or even the RICO law, but I think this subpoena is well within bounds for a case like this.

It is indeed standard practice to get as much information relevant to a case as you can. I was a document clerk on a civil case brought by a farmer once, and because he alleged anquish, pain, and suffering, I got to (had to) see documents about his urology visits.

I don't see anywhere in the ruling, Josh, that the people seeking to quash access to data are doing so on the basis of attorney-client privilege. Maybe they're not entitled to it, or maybe their lawyers didn't argue it. When you don't argue something, you're guaranteed to lose...

I know little about this case, and I don't endorse Chevron's side (or anyone's), but my spidey-sense is picking up bad lawyering on the side of the people trying to quash the subpoena. Where's the argument that this is a SLAPP (strategic litigation against public participation)? There is an anti-SLAPP law in New York state (which may or may not apply), but then I don't know if NY's anti-SLAPP law protects non-NY individuals, which gets us back to whether the people seeking to quash are even U.S. persons entitled to the protection of U.S. law. That's what the ruling turned on, whether non-U.S. persons get First Amendment protection.

It's worth reading the ruling -- not that I did that before I first commented!... ;-)

Here it is: http://dg5vd3ocj3r4t.cloudfront.net/sites/default/files/documents/Kaplan-Order-Hotmail-IP-subpoena_0 .pdf
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Josh in CharlotteNC (profile), 23 Jul 2013 @ 12:40pm

Re: Re: Not Sure That This Ranks as an Outrage
Awesome, thanks Jim. It still raises some concern in my mind, but it might not be as bad as it first appeared.
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Walid Damouny (profile), 23 Jul 2013 @ 1:44pm

Re: Not Sure That This Ranks as an Outrage
The outrage should be that a commercial company is saying that the laws (freedom of expression here) don't apply for people who are not Americans. I'll take the analogy to the extreme to highlight what I mean. What if a person was killed by an American organization or person. Does that killed person lose their legal rights because they are not an American citizen? I don't think so. This is just a play on words on Chevron's side to try and sidestep the law.
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Jim Harper (profile), 23 Jul 2013 @ 2:40pm

Re: Re: Not Sure That This Ranks as an Outrage
The company is arguing in court that the defendants and their associates violated their rights. To prove the allegations, they need access to information about who did what. There isn't a First Amendment right to bar discovery of information (whether it be about your organizing, speech, associating, or religion) if it is plausibly relevant to a lawsuit.

To illustrate: Let's say Ann is videotaping Bob at a protest. Bob is wearing a mask to hide his identity, but as he yells "Fuck Exxon!" and throws a brick through Exxon's window, his mask falls off. He picks it up and quickly puts it back on.

Ann and Bob were both doing things that are protected by the First Amendment: videotaping a newsworthy event and protesting/speaking. Bob was trying to maintain his anonymity, which he is generally entitled to do. But Exxon has full rights to subpoena Ann's videotape in a lawsuit against Bob to get access to information about what happened and who did what.

For some reason, the ruling turns on the fact that the people trying to keep the information out of court are not proven to be Americans, but I don't think that really matters.
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art guerrilla (profile), 23 Jul 2013 @ 4:51pm

so, obviously...
the the greenies get to see 9+ years of all the digital data from chevron, inc worldwide, plus their personal email accounts, plus all their relatives and associates email, plus, plus, plus...

right ?
richtig ? ? ?

oh, you mean that is more of that 'diode justice' ?
only works one way ? ? ?
thought so...

art guerrilla
aka ann archy
eof
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a, 24 Jul 2013 @ 5:31am

Response to: Ninja on Jul 23rd, 2013 @ 6:46am
https://www.ixquick.com/eng/protect-privacy.html

Alternative to Google duckduckgo etc
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Nate, 24 Jul 2013 @ 8:20am

Re: Re: Not Sure That This Ranks as an Outrage
Once again, yes this is a RICO case, but the targets are not the people alleged to have participated. They're third parties against whom Chevron has alleged nothing. The NY anti-SLAPP law doesn't apply for the same reason... these folks ARE NOT defendants.
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John Fenderson (profile), 24 Jul 2013 @ 11:08am

Re: Re: Re: Not Sure That This Ranks as an Outrage
For some reason, the ruling turns on the fact that the people trying to keep the information out of court are not proven to be Americans, but I don't think that really matters.

I think it matters because they don't want to bring in a Constitutional challenge to the data collection itself. If the data collection is ruled illegal, then discovery issues are moot.
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Jim Harper (profile), 25 Jul 2013 @ 5:46am

Re: Re: Re: Not Sure That This Ranks as an Outrage
The ruling says: "The email addresses listed in the subpoena belong to non-parties who allegedly were involved directly or indirectly in the Ecuadorian litigation." The judgment in that case, Chevron argues, is the product of fraud and violations of the RICO Act. This makes the email communications relevant to the case and within the bounds of appropriate discovery. It may help Chevron prove the fraud and RICO violations they allege.
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Jim Harper (profile), 25 Jul 2013 @ 5:51am

Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
I don't understand your comment. Who's "they"?

The non-parties alleged to have been involved in the fraud brought a constitutional challenge...
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Nate, 25 Jul 2013 @ 8:15am

Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
Two points. First, Chevron has made absolutely no showing that these people were involved (directly or indirectly). There is no evidence to support Kaplan's statement. But more important, relevance, while the usual standard for discovery, is not the operative standard here. Read Dendrite. In order for Chevron to get what they ask for, they need to prove that it's necessary for a core claim or defense, "highly" relevant, and unavailable from other sources. Chevron has specifically declined to do so.

That it "may" help Chevron prove the allegations would make the requested information relevant, but isn't enough to meet the heightened first amendment standard here.
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Nate, 26 Jul 2013 @ 6:27am

Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
You don't understand who the non-parties are... they haven't been alleged to be involved with anything. That's why they're non-parties. Chevron has *said* that they're involved, but no causes of action are alleged against them, nor does Chevron need to prove any of (what you're calling) "allegations" against them to prove its case against Donziger.
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Jim Harper (profile), 27 Jul 2013 @ 9:18am

Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
In Dendrite, the sufficiency of the claim of harm (and thus the existence of wrongdoing) could be ascertained from looking at the anonymous communications without unmasking the speaker. In this case, we have known individuals whose participation in the alleged wrongdoing may be revealed by discovery. They could be added as defendants. It's a textbook use for discovery (though I'll admit it's been a long time since I looked at a discovery textbook! ;-)

You probably agree with me (and I hope so) that there is not First Amendment protection for speech that facilitates criminal and civil wrongdoing.

If you start with the premise that these parties were not involved in wrongdoing, their communications would be protected by the First Amendment, but if you don't start with that premise, their communications are subject to discovery.

I'm picking up that you take as a premise that non-parties were not involved in wrongdoing, that you disagree with Judge Kaplan about the facts, and that discovery will not show they were involved. When you say "no showing" and "no evidence," are you sure you're not discounting and dismissing evidence that actually does exist? (Weak evidence is evidence.)

I just don't come to this case with the same premises. If you disagree with Judge Kaplan about the facts, I can't argue with you because I don't have an opinion of the facts. Taking the facts and allegations as he states them, I don't find his application of the law outrageous.
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Jim Harper (profile), 27 Jul 2013 @ 9:30am

Re: Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
Earlier in this thread, I quoted direct proof that Chevron alleges the non-parties to be involved. Judge Kaplan stated: "The email addresses listed in the subpoena belong to non-parties who allegedly were involved directly or indirectly in the Ecuadorian litigation" (the Ecuadorian litigation being part of the factual basis for the RICO claim).

It's in the passive voice, but I can't think of any interpretation of it other than as Judge Kaplan's recitation of Chevron's allegation. An allegation is saying something that has yet to be proven.

Discovery can reveal the existence and actions of parties who are properly then added to the case. That could be what's going on here. As I said earlier, if you assume the non-involvement of these parties, the discovery is indeed wrong, but the allegation exists, and what courts do with allegations is allow discovery so allegations can be examined.
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Nate, 28 Jul 2013 @ 12:47am

Re: Re: Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
Three points. When I say no evidence, I mean it. Chevron has put NO evidence on the record here as to most of the email addresses at issue and no competent evidence as to any. Chevron's burden was to introduce those facts for each ad every address. They declined to do so. Chevron certainly said that the non-parties participated but sayin' don't make it so without evidence.

The First Amendment protections only drop off once a prima facia case of criminal wrongdoing BY THE SPEAKER is made. Kaplan relies on Chevron having made a prima fascia case of wrongdoing by Donziger to waive the First Amendment protections of the non-parties. That's just plain wrong.

Finally, the time to add defendants passed before the subpoenas issued, so that's not their motivation in seeking discovery. Trial is set for Oct 15. The opening brief in the appeal is due Oct 31, which means that even if they eventually prevail, they won't get the data until mid-2014. And yet Chevron refuses to back down from these subpoenas. That should suggest Chevron's motivation here has nothing to do with the RICO case.
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