The case concerns Alwyn Farey-Jones, an American involved in a legal dispute with a firm called Integrated Capital Associates Inc (ICA). In the course of the dispute Farey-Jones instructed his lawyer to subpoena ICA's ISP so that e-mail evidence could be obtained.
The rules governing subpoenas specifically state that the issuing party is to "take reasonable steps to avoid imposing undue burden or expense". However, the lawyer, Iryna Kwasny, issued a subpoena so broad that the court later described it as a "piece of paper masquerading as legal process."
The ISP, NetGate, complained to Kwasny about the volume of e-mails involved, but then published a selection of 339 e-mails on a specified web page. Most of these e-mails were unrelated to the dispute.
Once ICA heard about the subpoena it immediately sought to have it quashed. According to the Appeals Court:
"Magistrate Judge Wayne Brazil soundly roasted Farey-Jones and Kwasny for their conduct, finding that 'the subpoena, on its face, was massively overbroad' and 'patently unlawful,' that it 'transparently and egregiously' violated the Federal Rules, and that defendants 'acted in bad faith' and showed 'at least gross negligence in the crafting of the subpoena.'"
Farey-Jones was ordered to pay over $9,000 in damages.
ICA and some employees whose e-mails were among the 339 then took action under various statutes.
The first of these, the Stored Communications Act, gives action against a person who intentionally accesses stored communications and "obtains, alters, or prevents authorised access to a wire or electronic communication while it is in electronic storage."
The District Court dismissed the suit on the grounds that by its actions NetGate had authorised access to the e-mails. The Appeals Court disagreed, stating that NetGate had acted in response to a false subpoena. It said:
"The subpoena's falsity transformed the access from a bona fide state-sanctioned
inspection into private snooping."
There was therefore no valid authorisation.
ICA also raised an action under the Wiretap Act, which permits action against those who intentionally intercept "any wire, oral, or electronic communication." The district court dismissed this action, and the Appeal court upheld the ruling, on the grounds that the Act covers only "acquisition contemporaneous with transmission" – which these e-mails were not.
ICA's final ground of action was under the Computer Fraud and Abuse Act, which allows action against a person who accesses information without authorisation from "any protected computer if the conduct involved an interstate or foreign communication."
Again, this was dismissed by the district court – because the Act does not cover a third party's computer. The Appeal Court overturned this ruling, stating, "Individuals other than the computer's owner may be proximately harmed by unauthorised access, particularly if they have rights to data stored on it."
The result was that Farey-Jones and his lawyer now face these two actions in the district court. They may face criminal penalties, as these are included in the scope of the Computer Fraud and Abuse Act.