
-specific and it's notoriously difficult to predict whether a court will ultimately conclude that someone is entitled to the fair use defense. I'm somewhat surprised that Gawker is taking a hard line on the fair use issue. Maybe they are taking a stand in order to show everyone that the disappearance of so-called "old media" entities will not leave institutional First Amendment interests hanging? They could have taken down the tape (although they published it after receiving a demand from Dane's lawyers) after-the-fact, and likely come to some sort of easy settlement with Dane and company. However, aggressively defending the case, as they seem to be doing, only escalates the stakes. (Good for them for sticking to their guns.)Coverage at THR, Esq. here and here.To quote the great Marty Singer - Eric Dane's lawyer – 'If you don't want a sex tape on the Internet, don't make one!'
I'm not even sure what to say to that, except it's well outside the "everyone will have at least one email gaffe in their professional lives" rule that I believe is true.Everyone has had at least one bad email incident that they have had to learn from. Some involve, say, sending an invitation and forgetting to bcc everyone. Or worse, sending an email complaining about your boss to, er, your boss, named Sarah (instead of your best friend Sarah). But, NO ONE, and we mean NO ONE has had a worse email gaffe than John X did about an hour ago.

Unless you provide us with notice that you wish to opt out within 45 days of receiving this letter, we will assume that you give us the right to share your CPNI with the authorized companies described above.Who is the information shared with? "affiliates," "parent companies," and "agents". "Agents" (??) The policy also states that the information will not be shared with "unrelated third parties." Legal issues aside, I have no idea from reading this who exactly my information will be shared with.
Interestingly, the defendant whose email was disclosed by the government as evidence in the Bear Stearns case prevailed in a motion to suppress the gmail evidence. (US v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y.; Oct. 26, 2009).) (Access a copy of the ruling at Scribd [pdf] here; see the WSJ story here ("In Setback for Bear Stearns Case, Judge Suppresses Email").)
Facts: The government initially obtained an email sent through non-company email accounts between Cioffi and Tannin (the two defendants) talking about how the "subprime market looks prettyugly . . . ." The government used this email to support its allegation sthat Tannin used his personal (gmail) account to commit or further the crimes. The government's affidavit argued it needed to search the gmail account, but offered certain limitations on the access - for example,the search would be limited to emails created on or before the day prior to the defendant's retention of counsel, in order to avoid interception of privileged communications. The affidavit also noted that "the nature of electronically stored data" required the authorities (rather than Google) to search through the email account.
The magistrate judge issued the warrant, but did not attach the affidavit to the warrant. The government went to Google, which initially wrote to the government that "it was no longer able to extract the information requested in [the warrant] because Tannin's account had been deleted." Several months later, "on the eve of trial,"Google advised that it had located a copy of the account and delivered a copy of its contents to the government. (??)
The Court's Ruling: The critical issue in front of the court was whether the warrant was sufficiently particular as to minimize unnecessary invasions into the suspect's privacy. The court noted at the outset that Tannin had "a reasonable expectation of privacy in the contents of his personal email account." The government did not dispute this point. (This doesn't seem to be a settled issue,as noted in the case mentioned below.) Turning to particularity, the court notes that searches of documents, data, computers, and email accounts raise tricky issues as to what level of particularity is required. A couple of different approaches have been used to avoid a general search by the government: (1) providing keywords or other search parameters in advance; or (2) having a third party conduct the search and segregate responsive information from non-responsive information.
The court noted that an overly broad warrant may be cured by incorporation of an affidavit that would constrain the agents' search,but Second Circuit cases have been less receptive lately to this approach. (In the context of a digital search, it would seem that this wouldn't work as well as it would with respect to physical objects. Exposure to data that doesn't fall within the search warrant would compromise the suspect's privacy and would undermine the whole point of particularity in this context.) Regardless of whether the affidavit could have cured the warrant's particularity problem, the affidavit was not actually attached to the warrant, so this argument was not in play.
The court ultimately concludes that the warrant did not comply with the Fourth Amendment. The government sought to invoke exceptions in order to have the evidence admitted notwithstanding these issues, but the court rejected both of these attempts. With respect to the good faith exception, the court was emphatic:
[t]his case. . . is not about search terms or firewalls. It is, rather, about the fundamental and venerable prohibition on general warrants. Since 'it is obvious that a general warrant authorizing the seizure of evidence without mentioning a particular crime or criminal activity to which the evidence must relate is void under the Fourth Amendment . . . no reasonably well trained officer could believe otherwise.'As to inevitable discovery - the second exception - the court's ruling is also interesting. The court seemed to say that the government could only satisfy particularity after having seen the emails procured by the overbroad warrant: "the government's timing still presents a problem:[h]aving seen the November 23rd email, the government is now in a position to obtain a warrant with perfect particularity. There is, in other words, no way to purge the taint of its unconstitutionally overbroad search."
***
I can't tell if the government just dropped the ball here or whether there's something more to it. One view is that if the government had a narrow warrant application and the magistrate judge issued a narrow warrant, the government could have probably obtained the information they ultimately sought? On the other hand, the court is rightly skeptical that the government could have obtained the emails at issue by providing a set of keywords to Google. After all, wasn't this the argument the government used to justify the fact that the search needed to be conducted by the government, rather than by Google or by a third party? The court's rejection of the government's inevitable discovery argument seems significant. [My practice does not stray into the realm of criminal cases so take that with a grain of salt. I'm curious to see what people like Orin Kerr and Scott Greenfield have to say. Congrats to Professor Kerr, whose "Searches and Seizures in a Digital World" article is cited by the court. He has also posted extensively on a recent Ninth Circuit decision that bears on these issues: United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009).]
Interestingly, Professor Kerr notes a recent decision from federal court in Oregon where the court held that email was not covered by the Fourth Amendment. Pointing to the Google terms of service, the court held that most users expect their emails to be shared with Google employees and other third parties, and the account-holder was thus not entitled to notice before the government obtained a warrant to search someone's gmail account. I think the account-holder still has the ability to challenge the search after-the-fact (as did the defendant in Tannin). Either way, the ruling obviously raises issues around process in the garden variety case. When do you as the account-holder receive notice of a government search?Does Google have a consistent policy on this?
I'm still sticking with my instinct that using a third party service such as gmail raises the risk that your emails end up in the hands of prosecutors. I'm also curious about Google's policies for dealing with these sorts of issues.
In orders issued today, Magistrate Judge Seeborg denied the request to intervene brought by the Texas plaintiffs and conditionally approved the class certification and settlement ironed out by the parties to the Northern District of California lawsuit. Judge Seeborg noted that although the lawsuits were "related," the Texas plaintiffs were aware of the California class action in September 2008. Thus, their request to intervene was untimely.
Quick thoughts on the ruling:
1. The court notes that to the extent the Texas plaintiffs have substantive objections to the settlement, these objections can be raised at a later date.
2. With the caveat that I'm not familiar with the nuances of class action procedure, I would guess it will become tougher to object to a settlement further down the road. As a practical matter, conditional approval will set in motion the process of notifying potential class members and providing them the opportunity to opt-out. A low number of opt-outs may be viewed as an indication that there's not really enough of a separate class that objects to the terms of the settlement conditionally approved by Magistrate Judge Seeborg to warrant a second class action. (On a related note, I wonder if the Texas plaintiffs will mount some sort of campaign to try to demonstrate that a substantial number of potential plaintiffs object and the settlement should not be given final approval. I'm guessing they won't set up a Facebook group as part of this campaign, but you never know!)
3. It's sort of awkward for a group of putative plaintiffs who filed their lawsuit first to have their claims extinguished by a later filed class action. Blockbuster was named in the second filed action (in California) and to the settlement in the California lawsuit is approved, my instinct is that this may effectively kill the class claims asserted in the Texas lawsuit against Blockbuster. (There was some activity in the Texas lawsuit about whether the claims are subject to arbitration. The court in Texas found that Blockbuster's terms of service were "illusory," and rejected Blockbuster's request to arbitrate. Blockbuster has appealed this ruling.)
4. The terms of the settlement in the California lawsuit do not provide for payment of compensation to non-named class members. (See the notice approved by the court here: [pdf].) On the other hand, the Texas lawsuit alleged violations of the Video Privacy Protection Act, which provides for statutory damages.
5. The notice of settlement will be published through newspapers, and of course, "through Facebook updates."
It will be interesting to see how this plays out. [Cross posted at Prof. Goldman's.]