November 27, 2013 | By Nate Cardozo and April Glaser

UPDATE: EFF Appeals Chevron's Speech-Chilling Subpoena

On Halloween of this year, EFF and EarthRights International (ERI) filed an appeal in the Second Circuit (PDF) to protect the rights of dozens of environmental activists, journalists, and attorneys from a sweeping subpoena to Microsoft issued by the Chevron Corporation. Both the Republic of Ecuador (PDF) and a group consisting of Human Rights Watch, Automattic, a pair of anonymous bloggers, and academics Ethan Zuckerman and Rebecca McKinnon (PDF) filed amicus briefs in support of our appeal.

UPDATE: On November 22, EFF and ERI filed a related appeal in the Ninth Circuit (PDF) on our motion to quash Chevron's subpoenas to Google and Yahoo.

By way of background, the subpoenas at issue only the latest chapter in a two-decade battle over damage caused by oil drilling in Ecuador that should have ended with a $19 billion judgment against Chevron in 2011. Although the judgment was upheld on appeal in the Ecuadorian Supreme Court, the oil giant continues to fight with a RICO conspiracy suit filed in New York against 50 individuals involved in the case. In the new case, which is halfway through a bizarre trial now, Chevron claims that the Ecuadorian judgment was obtained through fraud. However, Chevron has not alleged that EFF's and ERI’s clients have engaged in that alleged fraud themselves.

Chevron’s subpoenas are directed at Microsoft, Google, and Yahoo and demand information related to the owners of 101 email accounts, including their names, mailing address and billing information, and the IP addresses associated with every login over a nine-year period.

The scale of Chevron’s subpoenas are truly massive; nine years’ worth of data will allow the oil company to paint a fairly precise picture of the movements as well as personal and political associations of the activists, journalists, and attorneys whose speech it dislikes. The request has serious implications for the future of political speech and environmental advocacy, especially when the targets are people who haven’t been accused of wrongdoing, as is the case here.

A year ago, EFF and ERI moved to quash Chevron's subpoenas on the grounds that they violated the First Amendment’s protections for anonymous speech and free association.

Unfortunately, in June of this year, Lewis Kaplan, a federal district judge in New York, ruled that the Chevron's overly broad subpoena to Microsoft did not violate the First Amendment on the grounds that none of our clients were Americans. Judge Kaplan held (PDF) that Chevron’s request to pierce the anonymity of dozens of environmental advocates and map their locations over the course of nine years does not burden their First Amendment rights.

EFF and ERI objected because the judge was wrong on the facts and wrong on the law (PDF): Not only is one of our clients American, but the First Amendment’s protections extend to all of Chevron’s targets. This sweeping subpoena would grant it access to the names, locations, and relationships of activists, journalists, and attorneys—information protected by the First Amendment. If Chevron actually needed any of the information it seeks to prove the case, the company might potentially have been entitled to some of it. But because the targets are people Chevron has not accused of wrongdoing, the company has no need for the data it demands. Chevron vehemently disagrees with what our clients have to say and has used this subpoena in an attempt to intimidate them into silence. Chevron’s tactic has no basis in the law, and it won’t work.

Our motion to quash Chevron’s subpoenas to Yahoo! and Google was heard by a court here in the Northern District of California. In that case, Judge Nathanael Cousins ruled (PDF) that although the subpoenas were overly broad, they did not burden our clients' First Amendment rights. We appealed Judge Cousins' ruling to the Ninth Circuit. Chevron's response is due December 20.


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