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Subpoena of Internet Service Provider Records in a Divorce Case:

From London v. Does 1-4, an unpublished Ninth Circuit memorandum from last week:

In 2005, Jennifer London, a United States citizen who was domiciled in St. Martin, began divorce and child custody proceedings against her husband, Richard London, also a United States citizen, in St. Martin, a French territory governed by French law. Jennifer sought a divorce from Richard based on adultery, a ground for a fault-based divorce. To establish the adultery, Jennifer introduced evidence in the divorce proceeding to suggest that Richard had used five pseudonymous Yahoo! email accounts to solicit sex on the Internet. Richard denied that the email accounts belonged to him and claimed that Jennifer had fabricated the evidence.

Thereafter, Jennifer filed an application in district court for an order to conduct discovery on the five Yahoo! email accounts under 28 U.S.C. § 1782 for use in her foreign divorce case. The district court granted the application and issued a subpoena to Yahoo! directing it to produce: (1) documents identifying the names, addresses, and telephone numbers provided by the users of the five email accounts; (2) documents describing the dates on which the five email accounts were created; (3) documents describing the Internet protocol address (IP) from which the five email accounts were created; (4) documents identifying Internet groups in which the account users participated; and (5) documents reflecting group board postings made by the account users. Jennifer served Yahoo! with the subpoena, and agreed to waive the right to documents listed in item five. Richard and the four Does moved to quash the subpoena, which the district court denied....

The proof sought, given the nature and character of the foreign case, is critical to establish adultery, secure the divorce, and defend against allegations of fabrication. Such evidence may be the only way to identify the user of the email accounts used to solicit adulterous sex. The request is not an attempt to avoid foreign evidence rules, and is not unduly intrusive or burdensome because it seeks to gather only identifying information for the accounts, such as the names and addresses of the users, and not the content of any communication. Given the need for the evidence, and the minimal invasion required, the [Intel Corp. v. Advanced Micro Devices] factors weigh in favor of granting the request.

Appellants’ contention that granting the [discovery] request violates their First Amendment right to anonymous speech is also without merit. Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet. We have held that exposure of some identifying data does not violate the First Amendment. See People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th Cir. 1996) (holding that order identifying phone numbers through a caller identification service did not violate the First Amendment right to speak anonymously). Thus, because a legal privilege was not implicated, the district court properly denied the motions to quash the subpoena.

Mary Katherine Day-Petrano (mail):
These cases are becoming more common. One would have to wonder how much content could be obtained if, for instance, such content lacked privacy and First Amendment protections. Thank you for the post on a favorite subject.
5.29.2008 9:52pm
ReaderY:
It's not clear to me why internet addresses should be treated differently from cell phone numbers, or for that matter physical addresses.
5.29.2008 10:10pm
ithaqua (mail):
"One would have to wonder how much content could be obtained if, for instance, such content lacked privacy and First Amendment protections."

The Constitution, written two hundred years before personal computers, offers no protection whatsoever for e-mails, ISP records, or any other such electronic communications. If you want 'such content' protected, I suggest you amend the Constitution to protect it.
5.29.2008 10:41pm
ithaqua (mail):
That being said, the woman in this case sounds like a witch going on a witch hunt for alimony, and I confidently expect these adultery charges to be proven false. But still, the court has a right to ask for the records :)
5.29.2008 10:43pm
theobromophile (www):
Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet.

Well, when you phrase it like THAT....

Not that I'm against the ruling - it does not make sense to me why the right to speak anonymously would also implicate the right to be free from court proceedings based on that speech, or the right to never have your identity revealed in court (presumably, you could limit the damage by holding in camera proceedings, leaving the name out of written opinions, redacting that which can be redacted, etc). Maybe I'm taking a very narrow view of First Amendment rights, but it seems as if the right to speak anonymously would prohibit the government from criminalising anonymous speech qua anonymous speech, not the right to hide wrongdoing behind anonymity.
5.29.2008 11:02pm
Waldensian (mail):
The real question is why we permit litigation of "fault" in divorce proceedings in the first place. What a huge waste of time and money.
5.29.2008 11:25pm
Bill Poser (mail) (www):

That being said, the woman in this case sounds like a witch going on a witch hunt for alimony, and I confidently expect these adultery charges to be proven false. But still, the court has a right to ask for the records :)


Ithaqua,

I'm amazed at your ability to make such confident predictions without a shred of evidence. Unless you have private knowledge of the facts, which you do not even purport to have, there is no basis for your claims. You're merely spouting prejudice.
5.29.2008 11:28pm
ithaqua (mail):
"Unless you have private knowledge of the facts, which you do not even purport to have, there is no basis for your claims. You're merely spouting prejudice."

Well, yes. But I still think I'm right :)
5.29.2008 11:31pm
Bill Poser (mail) (www):

The Constitution, written two hundred years before personal computers, offers no protection whatsoever for e-mails, ISP records, or any other such electronic communications. If you want 'such content' protected, I suggest you amend the Constitution to protect it.


Sorry, but this is not the law. Telephones didn't exist two hundred years ago but the Supreme Court has consistently found that (domestic) telephonic communication is constitutionally protected. The rights to freedom of expression and privacy are not limited to technology that existed in the 18th century.
5.29.2008 11:35pm
David Schwartz (mail):
And similarly, when the Constitution demands "due process" it doesn't mean what was considered due process at the time it was written. It means the process that is actually due. Otherwise, for any action that could not have been imagined at the time of the drafting of the Constitution, no process whatsoever would be due.
5.29.2008 11:42pm
---:
Please don't feed the troll. The "how does Scalia's view of the Constitution account for new technology" is a tough question for some 1Ls, but there's no reason for the comments thread in this post to devolve into the special olympics of constitutional theory.
5.29.2008 11:58pm
Observer:
"The rights to freedom of expression and privacy are not limited to technology that existed in the 18th century."

Of course, the "right to privacy" has nothing to do with the Constitution, even with respect to "technology that existed in the 18th century."
5.30.2008 12:02am
This decision is a decision that was decided (mail):

[W]hen the Constitution demands "due process" it doesn't mean what was considered due process at the time it was written. It means the process that is actually due. Otherwise, for any action that could not have been imagined at the time of the drafting of the Constitution, no process whatsoever would be due.


That's fair enough, but having a right is different than having a right to a given level of technology or civilization. You may have a right to communicate that encompasses e-mail communications when e-mail technology comes around, but that doesn't mean you have a right to e-mail technology. It is cogent to argue that one has a right to bodily integrity that encompasses abortion procedures, but not a right to a given abortion procedure because that procedure need not have been invented and there may not be any doctors around to perform it.

One might also argue that "the process that is due" is just a way of saying "we expect judges to analogize from our foundational common-law traditions". That may encompass expanding procedural due process, but doesn't justify substantive due process. So it may be a perfectly fine response to a substantive due process argument to claim, "that isn't a part of our common-law tradition, nor does any analogy in this case rationally or persuasively follow from it."

It seems to me that the above two points are what is meant to be conveyed by "The Constitution, written two hundred years before personal computers, offers no protection whatsoever for e-mails, ISP records, or any other such electronic communications." That does not seem to me to be trolling.

Trolling, by contrast, I would say, is the sweeping aside of an argument in favor of a fundamental right to anonymous speech. The Federalist Papers were written anonymously.
5.30.2008 12:37am
ed (mail) (www):
Hmmmm.

How could any information gained from a free email service amount to anything? The Yahoo! email service is free, so there aren't any credit card records. Anyone can sign up at any time and represent themself as anyone.

The only restriction is that you have to provide a valid email address upon signup. But this email address purportedly is only used if you lose a password to the Yahoo! email address.

Aside from the legal issues it's entirely possible for someone to sign up 5 separate Yahoo! email addresses and use them for soliciting sex and yet have nothing to do with the husband.

What could she prove if nothing could possibly constitute proof of anything?
5.30.2008 1:06am
Oren:
ed, if the IP addresses used to register those 5 account point back to their house, i think that he's boned.
5.30.2008 1:12am
fishbane (mail):
but there's no reason for the comments thread in this post to devolve into the special olympics of constitutional theory

I suspect if you could turn that in to a bumper-sticker-sized phrase, you'd sell... well, at least 30 of them, because I would buy that many to give out, and perhaps vandalize with once or twice.

Anyone can sign up at any time and represent themself as anyone.

I suspect that a specific pattern of facts (those five accounts all having been registered from an IP address used by the household at a given time, also having been used to frequent groups where people looking for sex hang out, being registered within a timeframe that the wife may have previously mentioned in a filing, etc.) might just sway a finder of fact on a preponderance of evidence standard.

I know nothing of the case; just saying that I have no doubt that the data could well sway a judge.
5.30.2008 1:15am
Jerry F:
What is most insufferable about left-wing constitutional theories is not so much the absurdity of their results, but the complete lack of interest by liberals to at least make their theories consistent.

You want to argue that the First Amendment supports a constitutional right to Internet porn? Okay. But then, don't go complaining if Richard Scaife and Rupert Murdoch assert a Second Amendment right to manufacture and possess nuclear weapons.
5.30.2008 2:08am
theobromophile (www):
but there's no reason for the comments thread in this post to devolve into the special olympics of constitutional theory

Oh, if a few commenters (not mentioning any names here) arrive, we'll move on to the hurdle portion of today's programming. ;)
5.30.2008 2:26am
fishbane (mail):
You want to argue that the First Amendment supports a constitutional right to Internet porn? Okay. But then, don't go complaining if Richard Scaife and Rupert Murdoch assert a Second Amendment right to manufacture and possess nuclear weapons.

As a card-carrying member of the Vast Left-Wing Conspiracy (so I keep being told around fora like this), I would encourage Scaife and Murdoch to do what they can to join the nuclear club. I mean that sincerely. I would like to see it happen.
5.30.2008 2:39am
John Doe (mail):
Cyberslapp.org has the district court's Order Denying Motion to Quash and also the appellants' and appellee's briefs to the Ninth Circuit In re Jennifer London.

I'm still making my way through the documents, but this decision troubles me in light of NAACP v. Alabama. Specifically, the demand “(4) documents identifying Internet groups in which the account users participated” seems overbroad.
5.30.2008 3:01am
one of many:
They really should not have used People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th Cir. 1996), instead they should have stuck with Smith v. Maryland, 442 U.S. 735 (1979). The FCC case only touched on the issue indirectly (on whether or not the FCC had acted arbitrarily in establishing a caller ID standard which didn't automatically block out unlisted numbers). It could be that the 9th considers it's own precedents more binding even if they have to twist a small portion to fit their need than the USSC's precedents which directly address the point they wish to make.
5.30.2008 4:21am
John Doe (mail):
What in Sam Hill does People of State of Cal. v. F.C.C. have to do with the case at bar, anyhow?

From paragraph 5 of People of State of Cal. v. F.C.C.:
California's Public Utilities Commission ("CPUC") has filed two petitions seeking review of the Federal Communications Commission's ("FCC") decision denying reconsideration of the FCC's rule that subscribers who fail to choose the method to prevent disclosure of their nonpublished1 telephone numbers, when Caller ID service becomes effective, must be served with a system that requires the customer to dial each time a call is made ("per call blocking") to protect his or her privacy. [...]

And from para 54:
The argument that the Commission's preemption order violates a First Amendment right to speak anonymously is similarly devoid of merit. The CPUC's reliance on cases involving the right of anonymous political speech that have required disclosure of identity under threat of criminal and civil penalties is equally misplaced. In McIntyre v. Ohio Elections Comm'n (1995), the Court struck down a statute which prohibited the distribution of campaign literature. In Talley v. California (1960), the Court declared unconstitutional a statute making it a crime to distribute anonymous handbills. The Court instructed in Talley that "[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." Id. Similarly, in the third case relied on by CPUC, the California Supreme Court struck down a regulation requiring phone messages to include the name and address of the speaker because it "had the effect of restricting the dissemination of ideas." Huntley v. California PUC (1968). Unlike the circumstances in the cited cases, the FCC's regulation does not compel disclosure of the identity of a person who exercises his or her freedom of expression. The FCC's preemption order does not violate the First Amendment right to speak anonymously.

(Emphasis added; citations omitted.)

What does this have to do with a subpoena to Yahoo! compelling disclosure of the “names, addresses, and telephone numbers provided by the users of the five email accounts”?? Huh???
5.30.2008 4:51am
Hoosier:
SupremacyClaus--So . . . can the attorney bill ALL of the "John Does" in this case?
5.30.2008 7:55am
J. Aldridge:
Appellants’ contention that granting the [discovery] request violates their First Amendment right to anonymous speech is also without merit. Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet.


Amazing what law schools produce these days. You can sum up this theory in one word: Junk.
5.30.2008 9:31am
alkali (mail):
If you are a party to a lawsuit, and the other side wants to subpoena phone or e-mail records from a telecom or internet company, they generally have to give you notice of the subpoena. (See Fed. R. Civ. P. 45.)

If, however, you have some relationship to the lawsuit but are not a named plaintiff or defendant -- for example, if you are simply a witness to facts in dispute -- there is no requirement that you be given notice of a subpoena for your phone or e-mail records. Some companies notify their customers of subpoenas and give them time to seek relief from the court before the company responds, but not all do.
5.30.2008 11:02am
Rochesterian (mail):
J. Aldridge SAID:

"Amazing what law schools produce these days. You can sum up this theory in one word: Junk."

I think it goes beyond "junk." It seems now-a-days what’s coming out of law school is pure psycho ala Hitchcock.

In the below listed topic (right here on Volokh), a poster named “hkcajai” did not like the content of “Phil’s" law review article, so “hkcajai” posted the names, address and photos of “Phil’s" parents.

Given the fact so many of the posters here are either bar members or in the admission process, perhaps our respective state bar associations/examiners should begin to pierce the anonymity.

[David Bernstein, May 26, 2008 at 2:02pm] Trackbacks
Bizarre Harvard Law Review Student Note:
5.30.2008 11:25am
Another Old Navy Chief (mail):
"Waldensian:
The real question is why we permit litigation of "fault" in divorce proceedings in the first place. What a huge waste of time and money."

"In 2005, Jennifer London, a United States citizen who was domiciled in St. Martin, began divorce and child custody proceedings against her husband, Richard London, also a United States citizen, in St. Martin, a French territory governed by French law. Jennifer sought a divorce from Richard based on adultery, a ground for a fault-based divorce. ..."

Apparently WE just became French??? The divorce proceedings are in St. Martin, not the USA... The application for discovery was filed in US district court because the ISP (Yahoo!) is located in the US.
5.30.2008 12:41pm
Aultimer:

Observer:

Of course, the "right to privacy" has nothing to do with the Constitution, even with respect to "technology that existed in the 18th century."



Well, the 4A (a source of some penubras and emanations) does expressly cover the 18th century version of email and computer files.
5.30.2008 12:54pm
Dick King:

ed, if the IP addresses used to register those 5 account point back to their house, i think that he's boned.


Note to self ...

If I'm living with my husband and I sense my marriage going south [or think it may go south in the future] I should open some Yahoo! accounts from my home computer in my husband's name and solicit some sex. It doesn't do any harm if my marriage survives, and can net me big bucks if it doesn't.

Disclaimer: I work at Yahoo! but don't speak for them, and I live in a state where such divorce posturing doesn't happen, although I do see trumped-up domestic violence accusations.

-dk
5.30.2008 12:58pm
Jiminy (mail):
DK - your point is valid and it has become one of the larger arguments in the RIAA cases against file sharers. Thier pet detective MediaDefender grabbed a bunch of IP addresses of alleged filesharers, and based on that alone has sued many of them in the civil courts.

The IP Address is the closest thing that internet users have for a specific identity vs a physical presence. Now, IP Addresses can be tracked down to a single point of entry to the internet, like a cable modem connection or a wireless network, but without having the unique MAC address for your network connection (which can be faked easily) it is still dicey to try and figure out who is who online.

So your scenario is exactly correct. It's a great CYA when you don't trust your spouse.
5.30.2008 1:58pm
zippypinhead:
The interesting issue in this case (to the extent there ARE any interesting issues - and I'm not sure there are) relates solely to getting the information for a private suit in a foreign jurisdiction.

Not to alarm folks who are posting comments about the privacy implications of disclosing non-content information relating to e-mail communications, but to the extent you're thinking that you've got some overarching Constitutional right to use anonymous e-mail, you may be surprised to learn that even the "big, bad government" can already get all the non-content information at issue here, without first having to get a Judge's permission. And the Courts have upheld the statute giving that authority more times than I could possibly string-cite in a blog comment thread. There are a lot of people doing prison time for kiddie porn, wire fraud, and numerous other crimes who mistakenly thought they could get away with anonymous Internet communications.

The Electronic Communications Privacy Act, 18 U.S.C. §2701, et seq., lays out the permissible ways the government may obtain both content and non-content information about electronic communications. For the stuff sought here, including IP address and connection information necessary to prove the Yahoo accounts link back to the husband, the government need only issue a grand jury subpoena, or even an ex parte civil administrative subpoena (e.g., SEC or other admin agency subpoena, DOJ Civil Investigative Demand, etc.). See §2703(c)(2). And as a practical matter, getting even message content isn't that difficult, especially if you have probable cause. See §§2703(a), (b) (authorizing use of search warrants or court orders, unless it's deemed stored in a "remote computing service," in which case you can even use grand jury or administrative subpoenas, as long as you provide notice to the subscriber - and the notice itself can be delayed indefinitely under certain conditions per §2705(a)).

And since your're not dealing with real-time interception of communications, Title III's wiretap limitations simply don't apply.

Enjoy the weekend...
5.30.2008 2:51pm
theobromophile (www):
Robin Wilson addressed the issue of fault divorce here. The choice quote:
When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.


I personally like the idea of fault divorce, mostly because I dislike the idea that one person can unilaterally, without cause, divorce the other. That turns marriage into a sham of a contract.

Maybe it's a generational thing. AIDS has been around all of my life. To me, adultery isn't just a violation of the marriage vows, a horrible emotional blow to the spouse; it is a threat to the life and health of the spouse who has been cheated on. If your husband brings home a STD, that could mean sterility, degrading infections, cancer, or death. Yeah, I'm sorry, but that should come out in divorce proceedings.
5.30.2008 3:09pm
one of many:
M. Doe part D. of the ruling (para 54) should be compared to part C. (para's 47-51) which seems the part of the ruling the 9th was citing here. Poor choice of a case to cite though, really poor.

As for the district court's decision, I am only upset by the district court's failure to review in camera the documents in order to protect the privacy interests of possibly 5 innocent persons. While in camera review is unusual, I think it appropriate for this case. Once Yahoo answers the subponea in a non-in camera manner the privacy is nullified even if the information requested is from 5 innocent persons. That the information is subpoenaed for a French court takes any possibility of the district court protecting the privacy of the potentially 5 innocent persons out of it's hands.
5.30.2008 4:17pm
Smokey:
Oren:
ed, if the IP addresses used to register those 5 account point back to their house, i think that he's boned.
Yeah, because, like, an angry wife contemplating divorce would never sign up for any email accounts in her husband's name to 'solicit sex on the Internet' ...would she?
5.30.2008 4:58pm
Splunge:
Remember to put on your Internet rubber before surfing for anonymous cybersex:

http://www.anonymouse.org/

http://www.mailinator.com/

Personally, I'm a little mystified by how this information will be useful to the [EV: Vulgar insult of the woman involved deleted; folks, please let's maintain some decorum here.]

I mean, let's suppose it proves hubby was out soliciting anonymous sex on the Internet. To prove adultery she needs to prove he actually did go have sex with someone, no? Surely even in St. Martin mere fantasy sex isn't enough to be at fault in a divorce.

So of what use will the solicitations be? She's going to find out -- aha! -- he did agree to a tryst with HotLonelyWife65, and then...what? Who might that be? How does she prove, say, it's an actual woman, whom she can drag into court to cross-examine? (Although maybe California's spanking-new marriage law means you can be adulterous with another man, a dog, FBI provocateur, or whomever else satisfies your innate longing for and personal definition of dignity and intimacy.) So does she try subpoening Yahoo for the IP address from which HotLonelyWife65 signed up, too? I have a feeling that won't fly even in front of the loopy 9th Circuit.
5.30.2008 6:28pm
Dick King:

When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.


This is kinda glib, since in every state that I know of, even those with the strongest no-fault laws, assault and battery induces fault or something akin to fault. Also, why is the gender of the batteree relevant? Sounds like "privilege feminism" is rearing its head, since if, contrary to fact, battering were not considered at time of divorce, high-earning men would also have to pay their batterers for the privilege of divorcing them.

As far as other marital faults such as adultery and abandonment, several states have reasonably decided that they do not want the preparation for divorce to become an endurance contest. If unilateral no-fault is not possible, do you want alimony to depend on who can do without sex the longest? Do you want alimony to depend on who can make life miserable enough for the other in ways that can be difficult to prove in court that the loser flees the house?

Assault and battery are different. I accept the notion of being driven to abandonment and even, perhaps, to seeking sex outside the marriage. I don't accept the notion of being driven to battery.

-dk
5.30.2008 6:45pm
Mary Katherine Day-Petrano (mail):
"Yeah, because, like, an angry wife contemplating divorce would never sign up for any email accounts in her husband's name to 'solicit sex on the Internet' ...would she?" ---->

Smokey, of course that scenario might work both ways, maybe the husband does a little setting-up sceniario on the wife in plannig for divorce as well, no?

Of more interest in the disso context is the following: husband, a BIG HIGH INCOME EARNER, likes to spend waaayyy too much time playing around on Second Life in a virtual world, thereby diminishing his income by MILLIONS. Disso is filed, wife moves to get non-content IP etc info, to prove the family law court should impute a whopping amount of spousal support (and perhaps even child support) against the husband.

Why not?
5.31.2008 4:24pm
Mary Katherine Day-Petrano (mail):
"wife moves to get non-content IP etc info, to prove the family law court should impute a whopping amount of spousal support (and perhaps even child support) against the husband" --->

By proving husband is wasting time on Second Life, wife can show he is willfully refusing to work and earn income, thereby cause for imputation of amounts much higher than his financial statements show he earns.
5.31.2008 4:26pm
Barbara:
Looks like everyone's fresh out of troll food.
5.31.2008 5:03pm
Mary Katherine Day-Petrano (mail):
zippypinhead
WROTE:
"Not to alarm folks who are posting comments about the privacy implications of disclosing non-content information relating to e-mail communications, but to the extent you're thinking that you've got some overarching Constitutional right to use anonymous e-mail, you may be surprised to learn that even the "big, bad government" can already get all the non-content information at issue here, without first having to get a Judge's permission. And the Courts have upheld the statute giving that authority more times than I could possibly string-cite in a blog comment thread. There are a lot of people doing prison time for kiddie porn, wire fraud, and numerous other crimes who mistakenly thought they could get away with anonymous Internet communications.

The Electronic Communications Privacy Act, 18 U.S.C. §2701, et seq., lays out the permissible ways the government may obtain both content and non-content information about electronic communications. For the stuff sought here, including IP address and connection information necessary to prove the Yahoo accounts link back to the husband, the government need only issue a grand jury subpoena, or even an ex parte civil administrative subpoena (e.g., SEC or other admin agency subpoena, DOJ Civil Investigative Demand, etc.). See §2703(c)(2). And as a practical matter, getting even message content isn't that difficult, especially if you have probable cause. See §§2703(a), (b) (authorizing use of search warrants or court orders, unless it's deemed stored in a "remote computing service," in which case you can even use grand jury or administrative subpoenas, as long as you provide notice to the subscriber - and the notice itself can be delayed indefinitely under certain conditions per §2705(a)).

And since your're not dealing with real-time interception of communications, Title III's wiretap limitations simply don't apply."


zippy, besides being off-topic by analyzing federal criminal statutes litigated in a federal court, as compared to the call of the thread topic question which was getting the non-content info for a (foreign jurisdiction) family law court, your analysis is, however, somewhat incomplete, and therefore not overly helpful to the discussion. And I won't even get into the scope of the civil remedies available in Secs. 2707 &2712 under the very statutory scheme you discuss.

If folks are "alarmed" our BIG BROTHER government can access all our non-content Internet info, then I would have to wonder where they have been for the past 8 years of this Bush Administration. It is readily obvious that such access could, for instance, provide ample ability to track a disabled person from barn to barn where she might be engaging in her therapeutic riding medicin prescribed by her doctors -- why? simply the non-content info going about of phone calls, locations, etc. Of course, acknowledging that such is not considered "real time."

And, of course, I have never made the argument that a person would have a Constitutional right to use anonymous e-mail, although perhaps a person who was being cyberharrassed or cyberstalked in such a manner that off-Internet threats to life and safety were occuring may well indeed have a Constitutional right under such limited circumstances to claim a Constitutional right to use anonymous e-mail.

The flip side of this is, many like to claim an anonymous Constitutional right to blog under anonymous blog IDs, MySpace IDs, Caller-IDs, etc, and usually love to invoke their favorite citation to further this endeavor, the anonymity of the authors of The Federalist Papers. Such persons like to claim a First Amendment right to anonymous speech, however such claims are problematic.

For one thing, a clashing of two overarching First Amendment rights could occur in these circumstances, for example, since the enactment of the Rehablitation Act of 1973 and the Americans With Disabilities Act, together with the advent of the Internet, a certain particularly, traditionally hated group of protected disabled citizens have gained meaningful access to exercise their own First Amendment Constitutional rights through electronic formats mediums, that transcend, include, and are inextricably intertwined with a number of federal statutes aimed at their only available, meaningful disability-access formats and with some areas of FCC regulation.

These traditionally hated groups of protected disabled citizens were among a class historically subject to the following kinds of lack of access/censorship of their exercise of First Amendment freedoms:

1. guardian wards for whom lacked meaningful access/were censored by means of appt. of guardians and/or substitute proxies to speak for them, despite the ward and guardian/proxy not being able to brodge the effective communication gap occurring between themselves and the ward;
2. persons with types of disabilities limiting their ability to effective communicate First Amendment speech via expressive speech many thousands of whom were historically simply locked up in institutions with no meaningful access/censored by failure to provide access to electronic Internet formats;
3. millions of jail and prison inmates with certain types of disabilities limiting their ability to effectively communicate First Amendment speech via expressive speech to their lawyers/public defenders, FBI/other wiretaps, grand juries, prosecutors, courts/judges, and others, many millions of whom are adjudicated under vague and over-/under-inclusive discirminatory "insanity" criteria or are simply locked up under harsh sentencing guidelines with no meaningful access/censored by failure to provide access to Internet electronic formats with lawyers, courts, and in jails/prisons -- with one other significant problem, lack of meaningful access to exercise their habeas rights in their only available accessible disability formats, electronic Internet formats.

Now, as technology advances rapidly, we have come to endure a highly balkanized statutory/regulatory governmental environment in which ADA and RA First Amendment effective communications electronic Internet formats are arbitrarily and capriciously implemented in a totally inconsistent manner, implemented in some areas/places/agencies/depts./ courts but not others, and the entire system is in disarray.

For example, while the ADA and RA impose clear, strong, consistent anti-discirmination MANDATES upon state public entities (including police, fusions centers, state portion of JTTFs, state courts, state jude probable cause determinations/issuance of warrants) and federal agencies (including FBI investigators, FBI wiretappers, FBI provocateurs, U.S. attys., federal portion of JTTFs and fusions centers, deputized service providers allowing access) to provide persons with hearing and speech impairments with certain effective communication inferfaces or intermediaries such as CART realtime and/or qualified interpreters and/or screen readers or voice-recognition assistive technology to ensure that the speech intended to be criminalized was indeed effectively communicated and is indeed accurate, NOWHERE in his anaytical analysis the above federal statutes does zippypinhead complete his rather superficial analysis to provide us with the necessary implied and/or express repeal portion of the analysis required when one federal statue/regulation conflicts with another. Here, for example, the RA conflicting in many particulars with the Electronic Communications Privacy Act, 18 U.S.C. Sec. 1701 et seq. Another instance would be the express repeal of the ADA, 42 U.S.C. Sec. 12201(b) expressly applying the ADA's mandatory anti-discrimination rights, remedies, and procedures to supercede "other federal laws" in conflict with thise disability anti-discrimination mandates. One other federal law, as zippy mentions, is the Electronic Communications Privacy Act. Another, for instance, would be FBI and DOJ/U.S. Atty Guildelines of various sorts, and other federal criminal laws governing any form of electronic Internet communication format.

zippy says "For the stuff sought here, including IP address and connection information necessary to prove the Yahoo accounts link back to the husband, the government need only issue a grand jury subpoena, or even an ex parte civil administrative subpoena (e.g., SEC or other admin agency subpoena, DOJ Civil Investigative Demand, etc.). See §2703(c)(2)," but offers up NO LEGAL ANALYSIS WHATSOEVER for determining in the equation of "linking account" to "husband," wife, any otehr person, or even a zebra, whether the nominal account holder is acting directly for him/her/itself or, instead, in a fiduciary capacity for a vulnerable disabled communication/accessible formats- impaired person, or instead as a qualified interpreter. Absent such completion by zippypinhead of his analysis, some misguided prosecutor or grans jury somewhere lacking the ADA and A education and disability awareness training mandated by those anti-discrimination Acts might (1) falsely arrest an innocent disabled person, (2) maliciously prosecute an innocent disabled person, (3) expend enormous governmental budget resources all for ... the prosecutions inability to prove guilt beynd a reasonable doubt.

In essence, a few arms gestures and grunts or attempts to access inaccessible "facilities" (e.g. mobility impaired persons in Rendon v. Valleycrest Prods., Ltd. 294 F.3d 1279 (11th Cir. 2002) might be claimed to have accessed a "facility" by attempting to use their push-button dials for purposes of a grand jury, probable cause finding, warrant, or indictment, but the access, if some actual instances occurred, was not meaningful) of a communication-impaired disabled person does not necessarily equal proof of guilt as the government must prove it -- BEYOND A REASONABLE DOUBT.

The slippery slope conumdrum of ADA and RA total or partial implied or express repeal of other federal statutes/regs analysis zippypinhead fails to confront in offering up a half-complete legal analysis as the solution to catch criminals, is further complicated by the arbitrary and capricious manner in which the FCC attempts to separate out electronic Internet vs. telephone communications subject to varying types of FCC regulation -- enter the VOIP dilemma, for one example. Beyond the FCC's practically utter failure to adhere to full implementation of its ADA and RA enforcement authority, the FCC has created a copletely arbitrary and capriciuous scheme of regulations in the electronic Internet vs. telephone area by failing to:
(1) give notice and meaningful comment access to its federal rulemaking process to enable disabled electronic format assisitive technology users to particopate in the rulemaking process (invalidates the FCC rulemaking process and causes FCC to lose deference);
(2) recognize that certain groups of disabled citizens actually use electronic format Internet communications AS THEIR TELEPHONES for effective communication, rendering the FCC distinction between electronic Internet vs. telephone arbitary and capricous and subject to regulatory invalidation;
(3) apparently even RA self-evaluate FCC's own regulations as mandated by the anti-discrimination laws.

zippypinhead seems to have much fCC experience, making it a pleasure to engage the zip in this type of legal debate. However, while zippypinhead is "Enjoy[ing] the weekend...," it does not appear the state and federal governmental agencies he references are giving any thought whatsoever on completing their full implementation in the areas cited by zippy of the ADA and RA anti-discrimination mandates.

It is a fact, for anyone who has bothered to read over 10,000 ADA and RA cases, as well as research in the above-other areas cited by zippy, that criminal law and procedure and sentencing are some of the MOST UNDERUTILIZED areas of ADA and RA application -- to the point I am incredibly surprised that disabled defendants are not making ineffective assistance claims in DROVES for failure to raise these ADA and RA implied and/or express repeal arguments.

Meanwhile, the statistics that have come out regarding jail and prison populations state and federal OVERWHELMINGLY demonstrate a disproprotionate percentage if communication-disabled folks are being, in many instances, wrongly convicted. This disparate impact and treatment has replaced the prosecution/conviction/sentencing/incarceration racial problem by a landslide.

And, EVEN MORE INCREDIBLY, THE DOJ DOES NOT EVEN OFFER A SECTION 508-ACCESSIBLE ELECTRONIC INTERNET FORMAT ADA OR RA COMPLAINT PROCESS ON THE FOLLOWING DOJ ANTIO-DISCRIMINATION INTERNET WEBSITE: www.ADA.gov.

Likewise a qualified disabled person requiring such Sec. 508 electronic internet format access cannot even apply for EMPLOYMENT with:
(1.) DOJ;
(2.) FBI;
(3) US Trustee;
etc etc etc.

One might almost be able to assert that by such discriminatory policies as stated in this post, the DOJ created the danger to a certain group of communication-impaired disabled persons by preventing themfrom obtaining employment, and then fails to rescue form the harm created -- instead criminalizing HUGE segments of this protected class of persons.

It is a enormous travesty of Justice/failure of our System of Justice to a protected class of American citizens.
5.31.2008 7:14pm
What A Shame:

Barbara:
Looks like everyone's fresh out of troll food.

Trolls can eat almost anything. Res Ipsa Loquitur.

It looks like "DNFTT" has necessarily been redefined as "do not post any more comments here."
6.2.2008 7:50am
Mary Katherine Day-Petrano (mail):
"Barbara:
Looks like everyone's fresh out of troll food.


Trolls can eat almost anything. Res Ipsa Loquitur.

It looks like 'DNFTT' has necessarily been redefined as 'do not post any more comments here.'"

What-A-Shame, the comments you have made, adopting the comments of Barbara, remind me of how it was to be a person with autism in the public schools, that is precisely what carries over to colleges, law schools, clerkships, bar associations, courts, and the legal elite we see right here on the Volokh who have a BIG PROBLEM with ...

a person (myself) who appears a bit odd in the manner in which writing is performed like Carly Fleishman in the video ...

but whom tries to socially interact with her peers by posting on-topic posts such as the above family lawposts.

Your use of the terminology "troll" in the perjorative sense invoked here is indicative of cuing an incitement to other posters directed against this autistic person with the objective of:

1. attempting to invoke a prior restraint against the content viewpoint of everything the person with autism (myself) has to say by reason of dislike of her ideas for changing the legal profession to integrate persons with autism within it;

2. attempting to socially ostracize and refuse to integrate a person with autism (myself) by reason of dislike of the idea a person with autism graduated law school, passed a bar examination, wants to be licensed as a lawyer, and aspires to be a Federal Judge;

3. attempting intimidation and/or incitement to violence to ensure integration among her peers of a person with autism will be prevented one way or another -- e.g., by linking as did Nick M on another thread to other numerous reputation-harming posters, including a death threat made on Tampa Topix against the person with autism (myself) by reason of hatred toward persons with autism;

4. attempting to incite a boycott of the autistic person (myself) by all posters on this blog in restraint of trade (Sherman Act Sec. 1) to prevent the persons with autism from exercing ADA civil rights to prevent the autistic person from being a part of the legal profession;

5. attempting to incite outright intentional exclusion by reason of autism, prohibited by Title II instrumentalities, 42 U.S.C. Secs. 12131(1), 12132;

6. attempting to incite retaliation in violation of the First Amendment -- "It looks like 'DNFTT' has necessarily been redefined as 'do not post any more comments here.'".

It does not seem to matter what on-topic comment I post, I am almost always met with numerous off-topic ad hominem attacks and disparaging remarks.

Some of you elitists need to get off your high horse and recognize that persons with autism ARE graduating from American law schools, and INTEND to be a part of the American legal profession.

Whether it is the fact what is said has been said by a person with autism, or whether you just don't like the content viewpoint of a person with autism, is really irrelevant to the legal right persons with autism have to be integrated among all the other posters on this or any other blog.

Other readers have told me my above-family law imputation of income IP discovery comment is not only on-topic bute very interesting as well.

If no one resumes the on-topic discussion, all I can conclude, is that the call to incitement against myself due to my autism/content viewpoint speech has succeeded.
6.2.2008 5:19pm
Mary Katherine Day-Petrano (mail):
corr:
"is not only on-topic bute very interesting as well." - is not only on-topic but very interesting as well.
6.2.2008 5:26pm