Warrants for email and backup tapes

Karl Denninger karl at mcs.net
Wed Jul 29 14:13:32 UTC 1998

On Wed, Jul 29, 1998 at 04:10:07AM -0500, Phil Howard wrote:
> Karl Denninger wrote...
> [regarding what William Allen Simpson wrote]
> > Talk to a lawyer who understands this.
> Most definitely.
> > IN GENERAL - a state-based subpoena out of jurisdiction does not have to be
> > complied with.  HOWEVER, the issuer can then turn around and get it served 
> > out of your state (if they want to).
> > 
> > Its a pain in the ass for them to do this, but they certainly CAN.
> > 
> > If you have what's in the subpoena, and the subpoena is valid, you either
> > comply or risk a contempt citation from the judge who signed it.  You don't
> > have to produce what you don't have, obviously (you can't invent things that
> > don't exist!)
> > 
> > You CAN fight a subpoena (and you might even be able to get it quashed).
> > You really need a good attorney to look this situation over.
> I'm not a lawyer, so I can't specifically comment about law with competence,
> but without it, my feeling here is that asking for backup tapes of e-mail is
> no different than asking for copies of the e-mail itself.  AND, my feeling
> is that the e-mail box is effectively the property of the person or business
> to whom it is delivered.  It is not different, IMHO, than a court ordering
> your mailman to go back to your home, retrieve the mail from the mailbox he
> put it in (which you have not yet removed), open it, photocopy it, re-seal it,
> put it back, and deliver the copies to the party specified in the order.  Thus
> it is also my opinion that for a court to properly order the contents of the
> mail to be delivered to it, it must issue the subpoena naming the specific
> person, persons, business, or businesses for which it wants the mail, and it
> must deliver that subpoena to said parties first, ordering you to deliver only
> upon failure of the mail owner's to comply with the order of the court.  Any
> less is a violation of the 4th Amendment of the United States (IMHO).

Uh, no.

The point of the 4th Amendment is that it protects against *warrantless*
searches and seizures.

Now you can *challenge the subpoena* on those grounds (that the warrant is
improper according to the 4th Amendment).  What you can't do is pocket-veto
the subpoena.

It is exceedingly dangerous to ignore a subpoena under ANY set of
circumstances.  The appropriate choices of action are to either comply with
it or fight it, but you must NEVER ignore it.  If you DO ignore it, you risk
the judge who signed the subpoena issuing a bench warrant for your arrest on
either civil or criminal contempt charges.  The cute part about contempt of
court is that you can be locked up for what basically amounts to an
indefinite period (until you comply with the court's orders) or fined
hideous amounts of money with essentially no recourse.  As a rule of thumb,
do not screw around with men and women in black robes behind a bench!

If you don't have what they want you still have to respond.

Let's say you get a subpoena for (A), (B) and (C).

You have (A), but not (B) or (C).

You produce (A), and for (B) and (C) you instead produce an affidavit which
says that no responsive reply is possible as the materials and/or documents
you have been asked for do not exist.

Note that lying about (B) or (C) constitutes perjury, a felony, so don't do

Subpoenas are no big deal.  We get them with some regularity (probably two
or three a year) around here.  Usually it is the result of some investigation
that is being done on either a civil or criminal matter where someone did 
something that another party or the government doesn't like (ie: forgery of 
a purchase order or check, etc).  We're on a good enough basis with the
local Federales that when they're going to send one of these over they
usually call first asking for what they want; we point out that our policies
and contract prohibit disclosing what they want, and they very politely say
"thank you very much".  An hour later a nice man appears with papers in
hand, signed by a judge - at which point we give them exactly what they
asked for.  :-)

I've yet to fight one that we've received at MCSNet, but if I felt there was
good cause to do it, I would.  

Unless you have a contractual duty to your customers not to comply with a
subpoena (not unheard of in a contract, but also unusual) you do NOT have 
to notify them that you were served or give them the opportunity to quash
the subpoena.

If you EVER get one of these and suspect, for any reason, that it is aimed
at *you*, don't do a thing until you talk to a GOOD lawyer - and do that
RIGHT AWAY.  Most subpoenas have to be complied with or fought quickly - 
if you're lucky you have five business days.  Sitting on it for any length
of time is a very bad idea.

The kind of thing being talked about here though, where someone wants copies
of *backup tapes*, could easily be aimed at *YOU*.  It also might not be 
though - generally, when you get one of these and its aimed at a third party,
the reason for that kind of request is that in order to be admissible the
records must be produced in the "ordinary course of business".  Ergo, if 
a customer is doing something "bad", and they think you have a copy of it
on a backup tape, they can't ask you to extract the contents of THEIR
directory, because doing that is not an ordinary record - and further, it
leads to questions about the custody and control of the information.
Instead, they'll ask for the whole tape and have one of their forensics
people dissect it to get the information they want.

Note that, as others have noted, if the subpoena is from a grand jury, you 
won't be told much when you inquire as to what's going on (other than that
it is from a grand jury).  The reason is that grand jury proceedings are 
held in secret, and it is a crime to disclose the proceedings in the grand
jury room until they are concluded.

None of this is legal advice, since I ain't a lawyer :-)

Karl Denninger (karl at MCS.Net)| MCSNet - Serving Chicagoland and Wisconsin
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