A subpoena is a written order issued by a court or other authorized government entity demanding that an individual produce documents, appear and give testimony, or both. Subpoenas are commonly used by parties in civil and criminal court cases to obtain evidence and compel witnesses.
Personal emails stored on services like Gmail or Yahoo can potentially be subpoenaed in legal proceedings. A subpoena allows a third party such as an internet service provider to disclose private communications to law enforcement or attorneys. However, there are limits on when personal emails can be subpoenaed.
When Emails Can Be Subpoenaed
Personal emails can potentially be subpoenaed in certain legal situations, although there are limitations in place to protect privacy:
As part of a criminal investigation, law enforcement may subpoena personal emails with a court order if the emails are relevant to an active case. This could include situations like cybercrime, fraud, or domestic cases where emails may provide evidence.
In a civil lawsuit between two private parties, either party can request a subpoena for the opponent’s relevant personal emails. This frequently occurs in cases involving employment disputes, divorce and child custody proceedings, and lawsuits involving business dealings or contracts.
There are exceptions where personal emails may be protected from subpoena. Attorney-client privilege allows confidential communication between an attorney and their client to remain private in many cases. Other protections can include doctor-patient confidentiality and communication with a spouse.
Additionally, while law enforcement can subpoena emails from a service provider, providers often fight requests for users’ content unless the situation involves child exploitation, imminent harm to others, or similar severity. The Stored Communications Act provides protections in this area.
Who Can Issue a Subpoena
A subpoena is an official summons issued by an authorized party demanding access to documents, records, testimony or other evidence relevant to a court case or investigation. There are a few parties that have the authority to issue subpoenas:
- Courts/judges – Judges can issue subpoenas ordering individuals to provide testimony or produce evidence for cases over which they are presiding.
- Government agencies – Government bodies like the SEC, FBI, and other federal/state agencies can issue subpoenas to further their investigations or in relation to enforcement actions.
- Grand juries – Grand juries investigating potential criminal wrongdoing can subpoena evidence or testimony from witnesses.
While individuals generally cannot issue subpoenas, attorneys for parties involved in lawsuits can prepare subpoenas to be officially issued and signed by the court. Overall, subpoena power is limited to courts and government bodies conducting proceedings or investigations.
Challenging a Subpoena
If you believe the subpoena is unreasonable or improper, you can file a motion to quash the subpoena. This allows you to argue to the court why you think the subpoena should be withdrawn or modified. Reasons for challenging a subpoena might include that it is overbroad, seeks privileged information, or imposes an undue burden.
To file a motion to quash, you generally need to act quickly upon receiving the subpoena and file a formal written objection. The motion argues that compliance with the subpoena would be unfair, oppressive, overly burdensome, or otherwise improper. Reasons to challenge could include:
- The subpoena seeks information that is protected by legal privilege
- The subpoena is unclear or overly broad in what it is requesting
- Complying would be unreasonably expensive or time consuming
- The subpoena seeks confidential or proprietary business information
- The subpoena requests personal information irrelevant to the case
If you file a motion, the court will usually schedule a hearing to listen to arguments from both sides before deciding whether to quash or modify the subpoena. If your motion is unsuccessful, you may still need to ultimately comply with the subpoena, subject to the court’s ruling.
For more information, see this overview of how to challenge a subpoena: https://www.logikcull.com/blog/how-to-quash-subpoena-in-5-steps
Complying With a Subpoena
If you receive a valid subpoena for your personal emails, you are legally required to comply within the timeframe specified. This is usually around 2-3 weeks but may be shorter depending on the situation.
When complying, you should only provide the specific information requested and nothing more. For example, if the subpoena requests emails from January 1st to January 15th on a specific topic, do not provide emails outside of that date range or unrelated to the topic.
Emails are considered electronically stored information (ESI) under the Federal Rules of Civil Procedure. As ESI, emails must be provided in their native digital format along with metadata. This means you cannot simply print out hard copies of emails to comply.
If properly requested in the subpoena, you may also need to provide access to your email account so the requesting party can search for responsive emails themselves. This allows them to find emails you may have missed in your own search.
In most cases, you can comply by providing email files in a standard digital format like PST or PDF. You may need to export your emails from your email provider to do this. Failing to comply properly with the subpoena could lead to court sanctions or penalties.
Penalties for Not Complying
If you do not comply with a subpoena, you may face penalties for being in contempt of court. Contempt of court occurs when someone disobeys a court order or interferes with court proceedings. The court that issued the subpoena may charge you with contempt.
The penalties for contempt of court can include:
- Fines – Federal law allows fines up to $1,000 for criminal contempt of court. Some states may impose higher fines for civil contempt.
- Jail time – Federal law allows jail time up to 6 months for criminal contempt. Jail time for civil contempt is intended to coerce compliance rather than punish.
For example, according to Cornell Law School, “The punishment for such offense, upon conviction, shall be a fine of not more than $200, or imprisonment not to exceed ninety days, or both, at the discretion of the court” (43 U.S. Code § 104).
Before imposing penalties, the court may give you a chance to respond and explain why you did not comply with the subpoena. The court examines whether the non-compliance was willful or accidental. Penalties are less likely if there was a valid reason you could not comply.
Avoiding Unwanted Subpoenas
There are some steps individuals can take to reduce the likelihood of their personal emails being subpoenaed. Using ephemeral messaging apps like Snapchat and Signal where messages automatically delete can help prevent a permanent record. Storing emails and data with offshore or foreign providers may also make it more difficult to access the content. Encrypting emails and data can also add protection. According to the Electronic Frontier Foundation:
“Encryption protects the confidentiality of digital data stored on computer systems or transmitted over the internet or any other computer network. It converts data into a form that only authorized parties who have a special key can read. For example, when you browse the web, encryption protects your credit card numbers, account passwords, and any other private or sensitive information you transmit. Without encryption, this data is transmitted and stored in plain text, leaving it vulnerable to unauthorized access.”
By using encryption, individuals can help ensure their data remains private and secure. Proper implementation of encryption provides significant protection against unwanted access to personal emails and information.
When Providers Must Comply
Internet service providers and email providers are generally prohibited from voluntarily disclosing the contents of a subscriber’s communications to third parties under the Stored Communications Act (SCA). However, there are certain situations where an ISP or email provider may be compelled to disclose information in response to a subpoena.
The SCA allows ISPs and email providers to divulge the contents of communications if they receive a federal or state subpoena. However, the subpoena generally must be approved by a judge and meet other specific legal requirements (see 18 U.S.C. § 2703(b)).
Additionally, an ISP or email provider’s terms of service may allow them to disclose subscriber information in response to a valid subpoena. Most providers include language in their TOS reserving the right to comply with legal requests from law enforcement and courts. Users generally consent to these terms when signing up for an email account or internet service.
So in summary, ISPs and email providers are mandated to comply with properly issued subpoenas seeking customer communications, as permitted under both federal law and their contractual terms of service.
Alternatives to Email
While email is convenient and widely used, there are alternatives that can help avoid unwanted subpoenas or access to your personal communications. Here are some options:
Messaging Apps
Messaging apps like Signal, Telegram, and WhatsApp offer end-to-end encryption for your messages and calls. This prevents third parties like the messaging provider itself from accessing your communications. Just be aware messaging apps may have access to some metadata like who you contacted and when.
Voice Calls
For sensitive conversations, an old fashioned phone call avoids generating a digital record. Just be aware phone companies still have access to phone call metadata showing who you contacted and the duration. For maximum privacy, experts recommend apps like Signal for encrypted voice calls.
In-Person Meetings
When possible, having conversations in person ensures nothing is digitally recorded or stored. This completely avoids risks associated with digital communications being subpoenaed. The tradeoff is in-person meetings are less convenient and may be impractical if parties are geographically distant.
Summary
In summary, personal emails can be subpoenaed in civil lawsuits and criminal cases if they are deemed relevant to the matter. The party seeking the emails can obtain a subpoena from the court and serve it on the email provider or individual user.
If you receive a subpoena for your emails, you have the right to file a motion to quash or modify it if you believe it is overbroad, vague, ambiguous, or privileged. It’s recommended to consult an attorney to ensure your rights are protected. To comply, you would need to gather the specified emails and provide them, either in printed or electronic format.
Failing to comply with a lawful subpoena could potentially lead to civil or criminal contempt sanctions, so it’s best to seek legal counsel if you wish to object. To minimize risk, avoid using personal email for sensitive matters and be judicious in what you communicate.
In summary, while personal emails generally require a subpoena to be disclosed, users do have recourse to challenge subpoenas they believe to be invalid or excessive. Being careful in use of email reduces the risks.