I’m taking a break from billing (don’t worry, I had a long supper this
evening) to point out this story regarding one of the NY firms at which
I interviewed during 2L year (my big brother figure from law school
lasted all of 10 months there). The firm is tangled up in a
dispute with Craigslist and the EFF (give em’ money because I am not allowed to take on pro bono Doe cases). Here’s the EFFector action alert:
Law Firm Shows Ignorance of the Law in Anonymous Emailer Case
EFF Sends Letter of Protest to Shearman & Sterling Over Subpoena to Craigslist
San Francisco, CA – When an employee of San Francisco law firm
Shearman & Sterling received an email from an anonymous person who
seemed to be a disgruntled subordinate, he didn’t hit the delete
button. Instead, his firm subpoenaed craigslist, a community bulletin
board where the email first appeared as a posting, in order to discover
the identity of the “Jane Doe.”
Shearman & Sterling received an email from an anonymous person who
seemed to be a disgruntled subordinate, he didn’t hit the delete
button. Instead, his firm subpoenaed craigslist, a community bulletin
board where the email first appeared as a posting, in order to discover
the identity of the “Jane Doe.”
The firm justified its actions by arguing that the alleged
employee’s email was a form of “trespass” on Shearman’s computer
systems. The implication of this claim is far-reaching. Contradicting
binding precedent, Shearman proposes a rule that would mean anyone who
sends an email faces legal liability. It would allow email recipients
to track down anonymous correspondents simply to punish them for being
annoying or offensive.
employee’s email was a form of “trespass” on Shearman’s computer
systems. The implication of this claim is far-reaching. Contradicting
binding precedent, Shearman proposes a rule that would mean anyone who
sends an email faces legal liability. It would allow email recipients
to track down anonymous correspondents simply to punish them for being
annoying or offensive.
The Electronic Frontier Foundation (EFF) has written an open letter
to Shearman urging it to drop the subpoena. “The Constitution does not
permit subpoenas for identity just because someone was upset,” said EFF
Staff Attorney Kurt Opsahl. “While it is unfortunate that a Shearman
employee received an offensive email message, Shearman cannot
manufacture a cause of action out of thin air just so it can unmask an
anonymous speaker.”In its letter, EFF reminds Shearman of the long tradition of US
courts protecting anonymous speech, and argues that the law firm has
demonstrated no legal cause of action because it did not show how
receiving a single email message caused harm. Indeed, the California
Supreme Court ruled two years ago that sending an email is not a form
of trespass (see Intel v. Hamidi).
to Shearman urging it to drop the subpoena. “The Constitution does not
permit subpoenas for identity just because someone was upset,” said EFF
Staff Attorney Kurt Opsahl. “While it is unfortunate that a Shearman
employee received an offensive email message, Shearman cannot
manufacture a cause of action out of thin air just so it can unmask an
anonymous speaker.”In its letter, EFF reminds Shearman of the long tradition of US
courts protecting anonymous speech, and argues that the law firm has
demonstrated no legal cause of action because it did not show how
receiving a single email message caused harm. Indeed, the California
Supreme Court ruled two years ago that sending an email is not a form
of trespass (see Intel v. Hamidi).
Note that the Trespass theory is based off of one
email. This would be the equivalent of one of you sending an
offensive, anonymous email to my work address, and then my firm
subpoenaing your service provider / webmail provider to discover your
identity.