A Reminder: You Can’t Subpoena Non-Party ISPs for Emails in Civil Suits

I ordinarily wouldn’t blog about an unpublished short opinion from a magistrate judge in the Northern District of Mississippi (even though great things do come from there), but I view this as the leading edge of a wave of such opinions. In J.T. Shannon Lumber Co. v. Gilco Lumber, Inc., 2008 U.S. Dist. LEXIS 104966 (N.D. Miss. Aug. 14, 2008), Magistrate Judge S. Allan Alexander quashed the plaintiff’s Rule 45 subpoenas on Microsoft, Google, and Yahoo, which sought the “entire contents” of the email accounts of three of the individual defendants, employees of Gilco.

In addition to the ridiculously overbroad nature of the requests (all of the emails in their personal accounts?), J.T. Shannon’s subpoenas ran up against the Stored Communications Act (SCA), Title II of the Electronic Communications Privacy Act. The SCA prohibits a non-party ISP from disclosing emails to litigants in a civil case without the consent of its subscriber. This law may seem counterintuitive to litigation attorneys, who are used to being able to subpoena whomever they want within the scope of the Federal Rules of Civil Procedure. But the SCA is not incredibly onerous; it just means you have to request that the party produce their own emails, not the ISP.

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Wisconsin Court of Appeals Decides Important Video Privacy Case

Over on Concurring Opinions, Dan Solove reports on a recent Wisconsin Court of Appeals case involving Wisconsin’s video voyeurism law, Wis. Stat. § 942.09(2)(am). The case is State v. Jahnke, 2007AP2130-CR (Dec. 30, 2008). Wisconsin is one of a number of states that have adopted such statutes, which generally bar videotaping someone without their consent who is in a situation in which they have a “reasonable expectation of privacy.” Wisconsin’s version makes a violation a Class I felony.

Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.

The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.

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RIAA Ends Litigation Campaign

It’s official: the RIAA is throwing in the towel on its litigation campaign against filesharers. Wall Street Journal; CNET News. (One footnote: although the “campaign” is over, apparently individual battles will continue against heavy downloaders or uploaders.) This will not come as a surprise to my Internet law students; we spent the last couple of weeks of class discussing the content industry’s options, and the class was nearly unanimous that the lawsuits were unlikely to be effective. The only dissenters from that view opined that maybe the campaign was succeeding as a sort of public service announcement—use only legitimate sites and don’t upload! But as we noted in class, changing individual behavior from the top down is very difficult to pull off. It’s inefficient, in the sense that you aren’t likely to get much bang for your buck.

And indeed, that seems to be what’s behind the decision to end the lawsuits. The RIAA is a trade organization, funded by the member companies. And the member companies are apparently unhappy with the amount that they’ve been ponying up lately in the form of dues. A related report out today indicates that the record labels will be cutting back on their contributions this year.

So now there are two questions to ponder, one for today and one for a later post: first, how much of a success or failure was the litigation campaign? And second, what next?

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