By Tina Gerhardt, The Huffington Post
29 July 2013
On June 25, 2013, a federal judge approved a subpoena, to be served by Chevron to Microsoft, granting Chevron private Internet data related to 30 email addresses, including those related to environmental nonprofits, activists, journalists and lawyers.
This information forms part of a larger fishing expedition seeking information related to approximately 100 email addresses in an attempt to gather enough information to bring a lawsuit against those who won an $18 billion judgment against Chevron in Ecuador in February 2011 for dumping 18.5 gallons of highly toxic waste into the streams and rivers in the rainforests in the Oriente region of eastern Ecuador. Chevron's suit claims that "this judgment is the product of fraud."
"Chevron also seeks," the memorandum states, "the IP address associated with the creation of each account and the IP address connected with every subsequent login over a nine-year period. The time period covered by the request is 2003 through September 2012."
In particular, "the subpoena calls for the production of all documents related to (1) the identity of the users of the email addresses, including 'all names, mailing addresses, phone numbers, billing information, date of account creation, account information and all other identifying information.'"
It also seeks "(2) the usage of the email addresses, including 'IP logs, IP address information at the time of registration and subsequent usage, computer usage logs, or other means of recording information concerning the email or Internet usage of the email address.'"
The memorandum specifically states that "the subpoena does not call for contents of emails sent or received by any of the thirty email addresses." It does however request Microsoft to "produce documents identifying the account holders and their available personal information" and "the IP address connected with every subsequent login to each account over a nine-year period."
"Chevron would not learn who logged into the accounts. That is to say that Chevron would know who created (or purported to create) the email accounts but would not know if there was s ingle or multiple users for reach account. Nevertheless, the subpoenaed information might allow Chevron to infer the movements of the users over the relevant period (at a high level of generality) and might permit Chevron to make inferences about some of the users' professional and personal relationships."
As the subpoena itself states, it would allow Chevron to determine the countries, states, cities and even building addresses from which accounts were used.
Chevron also served subpoenas around Sept. 18, 2012 to Google and Yahoo, demanding IP logs and identifying information for approximately 71 email accounts. Earth Rights International and the Electronic Front Foundation filed a motion to quash these subpoenas on first amendment grounds in northern California on Nov. 28, 2012.
According to Nate Cardozo, lead counsel on the case at Electronic Frontier Foundation (EFF), they have been waiting for a response on these motions since February 2013.
According to Marissa Vahlsing, attorney, Earth Rights International (ERI), working on the case, "This is the second time we have seen this approach by the law offices of Gibson, Dunn and Crutcher. In 2007, in a case against Dole for using in Nicaragua the fertilizer DBCP, which is actually banned in the U.S., the same law firm – Gibson Dunn – used the same strategy of going on the offensive."
DBCP is a soil fumigant that has been banned in the U.S. by the EPA since 1979 because it causes sterility in males. It was produced by Dow and used by Dole on banana plantations in Latin America. According to the Los Angeles Times, in 2007, a judge awarded a group of six Nicaraguan workers who sued Dole in a U.S. court, $2.3 million. Dole, represented by Gibson Dunn, pushed back, and the judgment was thrown out in 2010 with the court presiding find that it was "a massive fraud perpetrated on the court."
With regard to Ecuador, Vahlsing continued, "Chevron lost in Ecuador. Now, they have gone on the offensive in the U.S., challenging the judgment as procured by fraud and conspiracy; as part of that case, Chevron has issued over a hundred subpoenas."
"Chevron fought particularly hard," she continued, "to enforce two extremely broad and invasive subpoenas against Amazon Watch, which has been running the Clean Up Ecuador Campaign for a decade."
In November 2012, Chevron served Amazon Watch a 28-page subpoena, demanding almost all internal documents and communications, memos, Facebook postings and emails related to Chevron campaigns and litigation.
The request included "all documents concerning any protests, rallies, marches, demonstrations, petitions or other similar events concerning Chevron or the Chevron litigations."
It included "all documents concerning any activities organized, created, or held on social media including, but not limited to, Facebook and Twitter, concerning Chevron or the Chevron litigations."/p>
"All communications with stock market analysts, investment professionals, energy analysts, journalist or any media professional or organization concerning the litigations."
"All documents concerning the establishment, administration, or management of related websites, or communications with the owners, managers or owners of any related websites."
The list included images on flickr.com accounts and images; Twitter accounts and feeds; facebook accounts; youtube accounts and videos.
The subpoena was quashed on April 5, 2013 on first amendment grounds. The document quashing it stated that "Amazon Watch has made a prima facie showing that the subpoenas seek information protected by the first amendment."
It added that "Chevron's subpoena for documents is overly broad"; that "Chevron fails to show that the information it seeks is highly relevant"; that "far from being carefully tailored, Chevron's requests are overbroad" and that "Chevron has not shown this information is unavailable by other means."
Marissa Vahlsing, ERI, expressed concern that activists are being "harassed and chilled" and "that Chevron seeks to establish a blueprint to go on the offensive."
Nate Cardozo, EFF, said that Chevron's approach is "a new use of old laws." He stated that "previously corporations would often use the power of the courts to silence critics. That's nothing new" he said. "For example, they would use a strategic lawsuit against public participation (SLAPP) against critics of corporations, in order to force them to spend time, energy and money on defending themselves. They might win but it would deter others from going the same route."
"Previously, costs were born by critics in these cases. Now, numerous states are passing anti-SLAPP legislation, which shifts the cost back onto corporations."
"Now, in this case, our clients are not defendants in a lawsuit. Chevron would call them 'witnesses.' So it is not a SLAPP per se. But they are people who have spoken out critically. To this end, it is a new use of old legal tools."