My Encounter with a Chevron Subpoena — and the ACLU’s Assistance (Updated)

by Kevin Jon Heller

Last week, while I was participating in a conference, I received an email from Google with a puzzling subject line: “Subpoena Notice from Google (Internal Ref. No. 257121).”  I opened the email, assuming that it was some kind of sophisticated phishing attempt.  It wasn’t.  It was Google informing me — more than a little cryptically — that Chevron had subpoenaed my account information and that it intended to comply unless I filed a motion to quash.  Here is Google’s email, with only some identifying information redacted:

Hello,

Google has received a subpoena for information related to your Google account in a case entitled Chevron Corp. v. Steven Donziger, et al., United States District Court for the Northern District of California, 11 Civ. 0691 (LAK) (Internal Ref. No. 257121).

To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at [Google email address] by 5pm Pacific Time on October 7, 2012, Google may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

[Attorney name]
Gibson, Dunn & Crutcher LLP
200 Park Ave
New York, New York 10166-0193
[Attorney phone number]

Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,
Google Legal Support

My first reaction was shock.  As regular readers know, I have often criticized Chevron’s actions in Ecuador.  But I could not imagine why Chevron was subpoenaing my private information; the sum total of my interaction with Steven Donziger, the Ecuadorian plaintiffs’ lead attorney and the defendant in Chevron’s lawsuit, consisted of two emails, neither of which contained anything substantive.  What did Chevron think I had that would help them?  Or were they simply trying to intimidate me?

My second reaction was anger.  I am — obviously — a blogger.  I am also, as a blogger, a journalist.  I have sources who provide me with confidential information on a wide variety of issues; those sources could lose their jobs if their identities were ever revealed.  It infuriated me that Chevron would try to obtain my account information — and I was equally frustrated that Google apparently had no intention whatsoever of protecting my privacy.

There was never any doubt in my mind that I would resist the subpoena.  But this wasn’t my area of law, so I immediately wrote for advice to my friend and Guardian blogger Glenn Greenwald, who has passionately defended the rights of bloggers and journalists.  Glenn put me in touch with Ben Wizner, the Director of the ACLU’s fantastic Speech, Privacy & Technology Project. To my relief, the ACLU quickly agreed to help me.

Our first step was to obtain a copy of the subpoena.  Once I informed Google that the ACLU was assisting me, they provided one.  The good news was that Chevron was not seeking the contents of my Gmail.  The bad news was that they were asking for nine years of IP logs, which would likely have given them three types of information: (1) the geographic location from which I sent each and every Gmail; (2) the kind of device I used to send each and every Gmail (phone, computer, iPad); and (3) the service provider (internet, mobile, etc.) I used to send each and every Gmail.  That was a remarkably intrusive request; I haven’t even been blogging for nine years.  And, of course, knowing the identity of my service providers would make it easier for Chevron, were they so inclined, to seek even more of my private information.

(It is also worth noting that I am not the only person whom Chevron has targeted — nor even the only blogger.  The subpoena asks Google to provide the same information for 43 other individuals, as well.)

The next step was to try to determine why Chevron wanted the subpoenaed information.  Perhaps not surprisingly, they wouldn’t tell us.  Instead, after a number of fruitless discussions between the ACLU and Gibson Dunn, Chevron chose to withdraw the subpoena — thus ending my legal adventure, at least for now.

I will likely never know why Chevron subpoenaed me.  But I do know that it is unacceptable for a party to litigation to try to obtain private information from a blogger-journalist who has criticized its tactics.  This is not about my journalistic freedom; it is about the journalistic freedom of all bloggers.  And it is not about Chevron; it is about any party that thinks it is acceptable to subpoena a blogger’s private information.  I would be no less critical of an attempt by Greenpeace to subpoena Glenn Reynolds.  Tactics like this need to be exposed and resisted, no matter who uses them or whom they target; passive acquiescence is simply an invitation to further abuses.

I also think that Google needs to do far more to protect the privacy of its users.  Twitter has been very active in resisting attempts to obtain its users’ private information.  Google has also done so in the past, but it did nothing to help me, even after I informed it via email that I was a law professor and a blogger-journalist.  But again, this isn’t about me.  It’s about all the other bloggers who might find themselves facing a similar subpoena.  I’m lucky: I have friends like Glenn Greenwald to ask for help. I’m sure that the ACLU would assist anyone in my position — but not everyone knows that the ACLU is out there, much less that no case is seemingly too small or too unimportant for them to be concerned.  More importantly, the ACLU should not have to get involved in every case like this one (and again, I am but one of 44 people named in the subpoena); Google itself — and all other service providers in similar situations — need to be the first line of defense.

This has been an interesting experience, to say the least.  I want to thank Glenn Greenwald for his advice and assistance.  I also want to thank my co-bloggers, who have without exception supported my efforts to resist the subpoena.  And finally, I am deeply grateful to Ben Wizner, Aden Fine, and Brian Hauss at the ACLU.  Their expert assistance has been much appreciated.

UPDATE: A new article in the San Francisco Chronicle about the Google subpoena — and similar subpoenas Chevron has sent to Yahoo and Microsoft — provides Chevron’s “explanation” for seeking my private account information:

“It’s very much in keeping with trying to defend this company against a $19 billion fraud,” Robertson said. “We’re trying to get to the bottom of that sort of conduct and understand how it contributed to the fraud.”

In Heller’s case, Chevron dropped its demand for his information once the company was satisfied that his Gmail address was indeed his and that he had no involvement in the case.

“It became a moot point,” Robertson said.

This is, shall we say, unconvincing — and makes it clear that Chevron was merely trying to harass and intimidate me.  A simple Google search for my Gmail address (“kevinjonheller [at] gmail [dot] com”) turns up literally dozens of my articles, blog posts, and the like that mention it.  Moreover, the ACLU did not provide Chevron with information that validated my Gmail address.  The point was thus moot long before I did anything to challenge the subpoena.

http://opiniojuris.org/2012/09/28/my-encounter-with-a-chevron-subpoena-and-the-aclus-assistance/

23 Responses

  1. If lawyers can be sanctioned for filing frivolous lawsuits, perhaps also for frivolous subpoens?

  2. Wow, that is messed up Kevin. I share your sense of injustice and outrage about this. I’m glad it ended well, and that you and the ACLU stood up to them.

  3. Regardless of whether or not one agrees with your perspective on the Lago Agrio matter, this subpoena by Chevron goes too far and you are right to be outraged.

  4. Dear Kevin,

    It was remarkably gracious of you to omit the attorney’s name from the email.  He or she does not merit such consideration.  

    Given your extremely tangential connection to the underlying suit, and the number of individuals who have received similar subpoenas, there is reason to wonder whether the attorney-in-question has violated his or her professional obligations.    

    Model Rule of Professional Conduct Rule 3.1, which has been adopted by New York State, prohibits frivolous filings (not just lawsuits) as well as the abuse of legal procedure.  See also Model Rule 4.4(a) (“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”).    

  5. My God that is scary.
    I’m wondering if Google was required to notify you of the subpoena, or was it a sort of “courtesy”? Mainly because I am curious if this might happen under the radar (and how often it might happen), without the victims’ knowledge.

  6. Liz,

    I assume they had to, but it’s not really my area of law.

  7. The best protective measure against subpoenas like this one is not to trust third parties with your email or other data. 

  8. Hmm… Isn’t it possible that they simply cast the net too wide with their subpoena? It’s commonplace in big lawsuits for people with very-peripheral-to-nonexistent involvement to get roped in on the initial paperwork, yes?
    To them, a mistake that had a very small chance of not being a mistake.

  9. I wonder what they would have done if you didn’t know Glenn Greenwald and the ACLU hadn’t stepped in. Thank God for the ACLU but people shouldn’t NEED an organization to protect them from big corporations who use the coercive power of the government to intimidate or steal their private information.

  10. I can’t help but wonder if any of this would have happened if you had not given an opinion in favor of Julian Assange in his asylum case?

  11. I, too, have received a notice that Google had been served with a subpoena. In my case, it was by the plaintiff acting pro se in her own frivolous lawsuit that ultimately was dismissed. In my email from Google, I was informed she wanted my account information (address, phone number, etc), but that I was welcome to hire counsel and get an injunction.
    I didn’t have the money for that – and I also knew she’d get nothing more than my name and the city I lived in – I purposely only gave that information in my profile anyway. So I let it happen, partly out of lack of funds and partly because part of me was childishly amused that she went through all this effort and money to get something she already had.
    But do I wish Google had worked a little harder (after all, the subpeona wasn’t even technically properly served)? Yes. I do.

  12. I think that Google was  required to notify you of the subpoena. However, if the government had sought your data using a warrant, then Google would not be required to notify you.
    The Stored Communications Act is the law that generally controls such cases. It ought to be amended, as some are trying to do.
    The Third Party Doctrine generally means that the Fourth Amendment doesn’t come into play when you voluntarily share your data, hence only the lesser protections of the Stored Communications Act. At the same time, as a corporation Google doesn’t have Fourth Amendment rights to resist subpoenas either.

  13. This is now happening in rape cases as well- an Oregon court ruled a victim’s google search queries fair game.   http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/10/bend_rape_victim_–_focus_of_a.html

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