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Judge Kaplan: Chevron can access its critics’ private user information

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.

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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.

This could allow Chevron to determine the countries, states, cities or even buildings where the account-holders were checking their email so as to “infer the movements of the users over the relevant period and might permit Chevron to makes inferences about some of the user’s professional and personal relationships.” (see Order, below, p6). Confronted with this affront to their privacy and rights of speech and association, the account-holders, represented by ERI and Electronic Frontier Foundation (EFF), brought “motions to quash” the subpoenas in courts in California and New York on First Amendment grounds.

Judge Kaplan, who presides over Chevron’s conspiracy lawsuit in the Southern District of New York, and who has been accused of prejudice against the Ecuadorians and their lawyers, managed to sit by “special designation” in the Northern District of New York so that he could decide the enforceability of the subpoena to Microsoft as well.

And decide he did. 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.”

Continued below the fold …

EFF and ERI Fight to Quash Speech-Chilling Subpoenas from Chevron – Oct. 2012

“Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron,” said Marcia Hofmann, Senior Staff Attorney with the Electronic Frontier Foundation, who–along with environmental rights group EarthRights International (ERI)–had filed a motion last fall to “quash” the subpoenas.

“These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant’s activities in Ecuador,” she added at the time.

In their statement about the ruling, ERI notes that the argument given by presiding US District Court Judge Lewis Kaplan–who was previously accused of prejudice against the Ecuadorians and their lawyers–was as “breathtaking as the subpoena itself.” They continue:

    According to Judge Kaplan, none of the account holders could benefit from First Amendment protections since the account holders 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 US 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?

Related case: Chevron v. Donziger

Historic Trail – 1993 to present

The lawsuit itself dates to 1993, the year in which the class-action suit Aguinda v. Texaco was filed in New York. (Click to download the 1993 legal complaint against Texaco.) Texaco was headquartered in White Plains, NY at the time, and plaintiffs’ legal team argued that the United States was the appropriate forum for the case, as the decisions that led to Ecuador’s “Rainforest Chernobyl” were made in New York, at the highest levels of the company. Texaco petitioned for years to have the case relocated to Ecuador, submitting numerous affidavits in the process praising the integrity of Ecuador’s judicial system. In 2002, after a series of appeals, Texaco’s (now Chevron’s) request was granted under the judicial doctrine of forum non conveniens. Chevron was required to submit to the jurisdiction of the Ecuadorian court. Thus, any judgment against it in Ecuador will be enforceable in the United States. Images

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