

Court: Chevron can subpeona Americans' email data in Ecuador case - Libertatea
http://www.motherjones.com/politics/2013/07/chevron-ecuador-american-email-legal-activists-journalists

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tptacek
I'm finding this article unsurprisingly hard to reconcile with the actual
opinion, which concerns something like 30 specific named accounts and no
others, as part of civil discovery during an ongoing court case. At the very
least, it seems like the headline is egregiously overblown.

The conclusion that we'd be better off without Techdirt (the MoJo story
Techdirt hijacks is somewhat better and at least includes a link to the order)
continues to be hard to avoid.

~~~
duncanawoods
The headline and article both accurately report that 9 years worth of meta
data of american citizens is to be handed over to Chevron.

You don't appear to be disputing this so what are you struggling to
"reconcile" and what is so "egregious"?

~~~
tptacek
The headline is deliberately written to convey the impression that Chevron is
dragnetting the American population. I'm not interested in the nerdy argument
we could have about whether that's true; I'm confident that it is.

~~~
thwest
The dragnet interpretation really seems to be your own. The headline simply
says "Americans'". There are no superfluous adjectives such as "massive" or
"unprecedented scale" which could be intentionally vague.

Deliberately is a strong claim. Do you have some internal Mother Jones memo?
Since you love to give the status quo the benefit of textual evidence, perhaps
you could do the same for this article, and reiterate what you consider to be
factually incorrect?

You also dismissed this article because document discovery is a normal
procedure. The article discusses how the discovery burden is different for
citizens and non-citizens, and how the wrong burden was applied as relates to
the first amendment. Do you think it is not important for courts to correctly
protect your rights as a citizen through the discovery process? Why would you
so pithly dismiss the article otherwise?

~~~
tptacek
My comment referred to the Techdirt story to which this thread was originally
attached, as you might have discerned from the fact that it refers to
Techdirt.

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rayiner
The Mother Jones article is far better than the TechDirt one, and specifically
includes helpful commentary. While Mother Jones decries the subpoenas as
"unprecedented" the reality seems to be that courts have not acted uniformly
in this area:

"But he notes that while anonymous speech made by Americans is protected under
the Constitution, 'courts have been inconsistent in applying that protection
against civil subpoenas aimed at identifying anonymous internet users.' In the
case Dendrite International, Inc. v. Doe No. 3, for example, an appellate
court held that a company was not allowed to unmask users who had criticized
the company on a Yahoo message board."

What the article makes out to be an "unprecedented overreach" is actually a
fairly subtle balancing of several different concerns. The first, and
overriding, concern is that a litigant has the right to any evidence that
might prove his case. Balanced against that is the concern that discovery
could "chill" protected anonymous speech. Implicated in that second point is
two issues: 1) most of the subjects of the subpoena do not seem to be
Americans who can raise the 1st Amendment issue in the first place; and 2) 1st
amendment concerns are weakened by the fact that any "chilling effect" would
be the result of actions by a non-state actor (Chevron) who isn't bound by the
1st amendment.

The fact that we hate Chevron shouldn't blind us to the facts of the case.
Chevron is fighting a $19 billion judgment against them. They have a colorable
claim that they are the victims of an extortion scheme. It is the judge's job
to figure out how to get them the evidence they need to prove their claim
while not trampling on any Americans' rights in the process. They have a right
to get that evidence to the extent that it is possible.

~~~
wwosik
> most of the subjects of the subpoena do not seem to be Americans who can
> raise the 1st Amendment issue in the first place

Yes, that's why we non-US people love the US.

~~~
rayiner
The U.S. has been more liberal than nearly any other developed country in
extending rights and privileges to outsiders.

E.g. map of countries that have birthright citizenship:
[http://en.wikipedia.org/wiki/File:Jus_soli_world.png](http://en.wikipedia.org/wiki/File:Jus_soli_world.png).

~~~
jkn
Birthright citizenship in the U.S. is hardly about a desire to "extend rights
and privileges to outsiders". The 1866 law was voted during the Reconstruction
after the Civil War, to guarantee civil rights for Blacks [1]. It was later
introduced in the Constitution to make it more robust against repeal [2].
Republicans have talked of repealing the amendment precisely because it is
used (abused) by "outsiders" [3]. I'd like to see better examples to support
the assertion that the U.S. has been more liberal towards outsiders than
nearly any other developed country.

[1]
[http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866](http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866)

[2]
[http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_Uni...](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution)

[3] [http://www.washingtonpost.com/wp-
dyn/content/article/2010/08...](http://www.washingtonpost.com/wp-
dyn/content/article/2010/08/07/AR2010080702605.html)

~~~
rayiner
Regardless of the initial motivations for the 14th amendment, it was
interpreted very early as extending a broad birthright citizenship:
[http://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark](http://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark).
And the fact is that the US has abided by it and extended citizenship to
people born on U.S. soil in a way France or Germany or any of the other
countries who get snooty about U.S. foreign policy never have. Those countries
are quite content to have large number of people born on their soil that can't
claim the privileges of citizenship (though their attitude is better now than
it was in the 1970's or 1980's).

My brother was born just a few months after we immigrated to the U.S., and he
was a U.S. citizen right off the bat, as much a citizen as anyone else and
eligible to run for President. That wouldn't have been true in any Western
European country.

To me, that suggests a pretty liberal attitude towards outsiders, i.e. making
it tremendously easier to transition from being an "outsider" to no longer
being an outsider.

~~~
jkn
To me the origin of birthright citizenship in the U.S. as a means of
guaranteeing civil rights to Black people is more significant than having the
Supreme Court interpret the text of the amendment in the rather obvious way.
On the other hand, it's true that senators acknowledged the consequence the
law would have on children of foreigners [1], so that speaks for extending
rights to outsiders. In any case, I'd like to see other examples supporting
(or contradicting) the view that the U.S. is particularly nice to outsiders.
It's rather average on the issue of citizenship through marriage I think. It's
obviously not very nice on issues of privacy (NSA scandal) as well as some
basic human rights (Guantanamo).

[1]
[http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_Uni...](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Children_born_to_citizens_of_other_countries)

------
kylelibra
The reason is "Chevron alleges that it is the victim of a mass extortion
conspiracy." Ok...seems a bit ridiculous to me.

I'm no lawyer, but is this significant in relation to the constitutionality of
the NSA spying? "(The Judge) ruled it didn't violate the First Amendment
because Americans weren't among the people targeted."

~~~
rayiner
It's a little relevant, because the point that non-Americans cannot complain
about violations of the First Amendment, because they don't have First
Amendment rights, is relevant to both situations.

Aside from that it's not very relevant. Courts have much broader powers to
subpoena information than the police. They can get pretty much anyone to turn
over any information, or testify about anything, with certain narrow
protections (e.g. 5th amendment, certain common law privileges like spousal
privilege or attorney-client privilege, etc), as long as the information is
relevant to an ongoing litigation.[1]

See:
[http://www.law.cornell.edu/rules/frcp/rule_45](http://www.law.cornell.edu/rules/frcp/rule_45).

[1] That is, incidentally, the key constraint on the power. Courts' subpoena
power can reach deeply but within a narrow scope. That's why the "fishing
expedition" question raised in the article is so relevant. It's not wrong for
a judge to rule that a defendant can access peoples' e-mails. It is wrong if
that allows the defendant to go on a fishing expedition with regards to people
who have no connection to the litigation.

------
btilly
See
[https://news.ycombinator.com/item?id=6033603](https://news.ycombinator.com/item?id=6033603)
for discussion about the case when it first happened.

------
jdc
Does anyone know what the evidence of the "mass extortion conspiracy" Chevron
provided in order to get the judge to accept the subpoena?

~~~
Roboprog
Thank you. This would seem to be _the_ central question about this. If Chevron
in fact has evidence that the "facts" presented in the Equidorian trial were
false, then they have pretty good reason to go after somebody for fraud and
extortion.

Otherwise, if the allegations in Equidor were undeniable, then their case is,
what? That somebody "coerced" the judiciary there to look at what was
_actually_ happening, and this is somehow unfair to Chevron???

If the premises of the Equidorian case were in fact false, then they have
basis to after the "liars". Otherwise, this would seem to be a fishing
expedition, the point of which is to harass the whistle-blowers to make an
example of them. "Dis is what happens when youz mess wid us, M.....F.....s!".

 _IF_ there is no evidence of falsehood, that is, _if_ the case against
Chevron in Equador is true, the irony of using RICO to harass the whistle-
blowers is oh so rich.

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randomdrake
I don't find this particularly surprising and that's sort of unfortunate.
Chevron has large ties in global communications networks. They have a huge
stake in Reliance Industries who are responsible for undersea cable
communications throughout the world. It's possible this court case was simply
a formality.

~~~
tptacek
Huh? What does this have to do with communications networks? Chevron is
embroiled in a legal battle with several people in Ecuador and the US, itself
having nothing at all to do with communications secrecy, and has identified
some of their email accounts. It has asked for information about those
accounts as part of discovery.

~~~
randomdrake
I was only commenting that I'm not surprised when Chevron is involved in
issues regarding access to communications since they have very large ties to
some of the world's largest communications networks. I wasn't commenting
specifically about the court case or the judge's decision but about the fact
that it just doesn't surprise me that this would happen, and I think that's
unfortunate.

------
yread
And again the only thing everybody is shocked about is that Chevron can get
email metadata of _Americans_!

This stuff should be protected under secrecy of correspondence for all the
people. Besides, it's the metadata of lawyers of the opposing party - they
themselves are responsible for protecting it - they can't talk to anybody
about what their clients told them and Chevron can just get it like that?!

~~~
mitchty
Its shocking for americans because they're american. Much like the NSA scandal
is shocking for europeans because they're europeans.

I think you're applying a causation without correlation here. Under what
conditions/preconditions should things be protected under "secrecy of
correspondence for all the people"?

Note I don't necessarily disagree, but there are multiple competing interests
here and I don't always think that the idea of secret communication overrides
societal benefits to being able to view things that aren't attempted to be
secret.

