Hacking by subpoena ruled illegal

Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.

Alwyn Farey-Jones was embroiled in commercial litigation with two officers of Integrated Capital Associates (ICA) when he instructed his attorney, Iryna Kwasny, to send a subpoena to the company's Internet service provider -- California-based NetGate. Under federal civil rules, a litigant can issue such a subpoena without prior approval from the court, but is required to "take reasonable steps to avoid imposing undue burden or expense" on the recipient.

"One might have thought, then, that the subpoena would request only e-mail related to the subject matter of the litigation, or maybe messages sent during some relevant time period, or at the very least those sent to or from employees in some way connected to the litigation," reads the decision by the Ninth Circuit Court of Appeals. "But Kwasny ordered production of '[a]ll copies of emails sent or received by anyone' at ICA, with no limitation as to time or scope."

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