The administrative subpoena at issue seeks to discover the identity of the owner of the email address “aurorapartners@gmail.com,” which the SEC has reason to believe may have been used to tout stock for “Jammin Java Corp.” as part of a “pump and dump” scheme. Pump and dump schemes generally involve the touting of a company’s stock (typically microcap companies) through false and misleading statements to the marketplace. After pumping the stock, fraudsters make huge profits by selling their cheap stock into the market. The SEC is investigating a rapid increase in Jammin Java’s price, which coincided with the wide dissemination of online newsletters touting its stock. The SEC is investigating the online newsletters to determine whether they contained materially false information about Jammin Java, and/or failed to disclose the disseminator’s financial interest in the company or compensation the company paid them. The SEC represents that it “has obtained information indicating that an individual using the e-mail address ‘aurorapartners@gmail.com’ may be involved in the touting activity at issue in the investigation.” Pursuant to its investigative powers and the Electronic Communications Privacy Act (ECPA), the SEC accordingly served an administrative subpoena on Google seeking the identity and contact information of the owner of the e-mail address “aurorapartners@gmail.com.” Google gave the owner of the email address notice of the subpoena, the owner hired counsel, and counsel moved to quash the subpoena.
NANDOR J. VADAS The ECPA requires “a provider of electronic communication service or remote computing device” to “disclose to a governmental entity the (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service … and types of service utilized; (E) telephone or instrument number or other subscriber number or identity …; and (F) means and source of payment for such service, of a subscriber when the governmental entity uses an administrative subpoena authorized by Federal or State statute ….” There is no provision in the ECPA allowing a customer whose non-content records are being sought to prevent disclosure, although where the governmental entity is seeking the contents of customer communications, customers may challenge disclosure.
Movant argues the subpoena should be quashed because disclosure of his identity would violate his right to anonymous speech, which is protected by the First Amendment to the United States Constitution. Movant has used the email address “to speak anonymously on the Internet. Specifically, I use the email address to post my opinions on various political blogs, including about the policies of specific members of the U.S. Congress. I have made these political statements under the belief that my anonymity will be protected.”
The SEC directs the Court to Brock v. Local 375, Plumbers Int’l Union of America … for the uncontroversial proposition that administrative agencies may investigate on the mere suspicion the law is being violated. Brock sets out the three-part standard of review courts in the Ninth Circuit apply in an agency subpoena enforcement proceeding: (1) has Congress granted the agency the authority to investigate; (2) have procedural requirements been followed; and (3) is the information sought relevant and material to the investigation? Brock recognizes that First Amendment protections may apply to information sought by an administrative subpoena and provides that where a party opposing disclosure makes a prima facie showing of arguable First Amendment infringement, the burden will shift to the government to show the information sought is rationally related to a compelling governmental interest and the subpoena is the “least restrictive means of obtaining the desired information.” Movant contends the Brock test does not apply here because a “more rigorous standard” applies to anonymous speech cases than to cases involving the right to free association at issue in Brock.
Movant’s argument relies exclusively on cases analyzing standards for disclosure in civil actions involving private parties embroiled in discovery disputes—
not cases balancing the needs of a legitimate government investigation with the interest of a party wishing to remain anonymous. Congress recognizes the need for government agencies to investigate wrongdoing and accordingly has granted these agencies investigatory powers that are not available to civil parties. The ECPA, for example, allows government agencies like the SEC to issue administrative subpoenas requesting information from ISPs or to obtain court orders compelling disclosure of subscriber information.
CONCLUSION Movant has not established that his addressing information is protected under the First Amendment, and the SEC sufficiently has established that the ownership of the email address “aurorapartners@gmail.com” is relevant to the Jammin Java investigation. Accordingly, the motion to quash the subpoena directed at Google requesting this information is denied.
CRITICAL THINKING:
What reasons does the court give for not seeing the First Amendment rights of the owner of the email address at issue in this case as protecting him from the subpoena? What does this decision suggest about the limits of the First Amendment?
ETHICAL DECISION MAKING:
Do you believe it is ethical to engage in anonymous online postings that are critical of others and/or their organizations? If so, is the golden rule obsolete? In other words, if you are okay with anonymous postings about others, would you be okay if someone anonymously criticized you online?