NNSquad - Network Neutrality Squad
[ NNSquad ] Re: Google complies with order of Bay Area federal judge -- Wikileaks all over again
----- Forwarded message from David Farber <dave@farber.net> ----- Date: Tue, 29 Sep 2009 02:18:48 -0400 From: David Farber <dave@farber.net> Subject: [IP] Re: Google complies with order of Bay Area federal judge -- Wikileaks all over again Reply-To: dave@farber.net To: ip <ip@v2.listbox.com> Begin forwarded message: From: "Paul Levy" <plevy@citizen.org> Date: September 28, 2009 10:52:10 PM EDT To: dave@farber.net, "Matthew Tarpy" <tarpy@tarpify.com> Subject: RE: [IP] Google complies with order of Bay Area federal judge -- Wikileaks all over again 1. Emergency situation involving a violation of what law? Without a violation, prior restraint for what? The recipient of the mail did nothing wrong; and there is no suggestion of any intent or plan to do anything wrong; so what is the basis for seeking an injunction against him or her? RMB said diversity jurisdiction presumably because it recognized it had no federal cause of action. And there was no real attempt to assert any state cause of action -- it was just, gee, we made a terrible mistake and we want to harness the court's power to do something about it. And there is no cause of action against Google -- Google is immune from suit for any wrongdoing by its users. Sorry, when a bank inadvertently discloses info, that info doesn't become a trade secret. And even if it were, the Ninth Circuit does not agree that state law IP claims (and trade secret claims are under state law) are within the IP exception to section 230. 2. Since the anonymous recipient is a Doe, Rocky Mt Bank had no right to file in federal court; you can't sue a Doe in diversity. Sure, they wanted to be in federal court, because of the augmented powers, many litigants try to come to federal court for that reason, but we have had 30 years of precedent, since the end of the Warren Court, emphasizing that federal courts are courts of limited jurisdiction and you can't sue there just because you want to use the federal courts. 3. Then you have the problem of seeking relief against the Doe with, so far as I can tell, no effort whatsoever to notify the Doe of the proceeding so that Doe could retain counsel and oppose. This raises procedural issues under Rule 65, not to speak of the constitutional problems. It is not even clear that there was notice of the TRO proceeding to Google -- Google's counsel entered an appearance the day after the TRO. Not saying there was no notice to Google -- just don't know that there was. 4. Yes, the relief was amazingly overbroad. Freeze Doe's email account, because some bank employee screwed up? Strip Doe of his or her right to anonymity because the bank staffer screwed up? The whole idea of being able to waltz into court and compel an ISP to suspend an email account on such vague grounds is incredibly offensive. 5. "exigent circumstances" seems suspect to me. The problem occurred on August 13. RMB went to court on September 17, sought a TRO on September 18, then had to file publicly on September 22. Why couldn't it take time to give notice and provide a real chance to respond? Usually, when the litigant delays filng for relief, that counts against the claim for a TRO 6. Finally, it would be nice to know exactly what Google did to comply with the court's order Google told the court that it had comnplied, and how, but it did that in a secret filing Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation. >>> "Matthew Tarpy" <tarpy@tarpify.com> 9/28/2009 8:33 PM >>> Hi Paul- I'll start off with IANAL, but from what I've read of this case so far, it sounds like the bank had a pretty good argument that the accidental disclosure of the information and possible redisclosure of the information did meet some "test" of exigent circumstance giving the Bank the right to get the prior restraint relief it was seeking. Is your issue that the ruling by the judge was overbroad, or that there shouldn't have been any prior restraint at all? If the first, would you view as a more reasonable course of action have been the judge requiring the Gmail account holder (who could have remained anonymous by creation of a secondary Gmail account or some other means to communicate between Google, the account holder, the bank, and the special master) to cede temporary custody of the account to a special master who would verify that the information hadn't been re-distributed, and compel Google to delete all copies of that spreadsheet (I'm sure there's some trade secrets law that could be stretched to fit around this situation)? If the second, then what remedy would the bank have to protect themselves and their customers against a data breach? --matthew From: David Farber [mailto:dave@farber.net] Sent: Monday, September 28, 2009 6:12 PM To: ip Subject: [IP] Google complies with order of Bay Area federal judge -- Wikileaks all over again Begin forwarded message: From: "Paul Levy" <plevy@citizen.org> Date: September 28, 2009 4:34:36 PM EDT To: <dave@farber.net> Subject: Google complies with order of Bay Area federal judge -- Wikileaks all over again Last week, a federal judge in the Northern District of California issued an order requiring Google to suspend a gmail account and identify its anonymous owner in another case that bears an eerie resemblance to last year's Wikileaks controversy -- bank runs into court, describes a threat to the confidentiality of its banking records that requires urgent action, and judge willingly goes along by issuing an order of questionable validity under the First Amendment, all without hearing from the other side (raising Due Process issues). And just as in Bank Julius Baer v Wikileaks, even apart from the consitutional concerns, the lawsuit itself is highly questionable -- although the potential disclosure of confidential documents is a serious issue, it is not at all clear that Rocky Mountain Bank had any valid claims against Google or the accidental recipient of its own careless disclosures, there was an obvious defect in the claim for fereral court jurisdiction, and the papers raised questions about whether the bank complied with the notice requirements of the Federal Rules of Civil Procedure before it could seek a temporary restraining order. In the Wikileaks case, it was a small ISP that went along with the court order because it didn't want to spend money litigating the case in its customer's interest; here is was Google that went along, and it remains to be seen why it complied so easily. I discuss these issues here: http://pubcit.typepad.com/clpblog/2009/09/did-google-yield-too-easily-to-a-baseless-court-order.html Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation Archives ------------------------------------------- Archives: https://www.listbox.com/member/archive/247/=now RSS Feed: https://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ----- End forwarded message -----