Obtaining Gmail Subscriber Information From Google in New York Courts
Without taking proper legal steps, obtaining information from Google about a user account is not an easy task. I have a client who received an anonymous threat from a Gmail account who wants to find out the identity of the sender. We tried, unsuccessfully, to get many branches of law enforcement to investigate, which is a whole story of its own. So the next best option was to obtain the information from Google ourselves.
In some instances you may be able to obtain the IP address of an e-mail sender by looking at the headers contained in the e-mail. This is a pretty straightforward task and can be accomplished easily with a variety of e-mail clients. Getting the IP address of the sender won’t give you their identity, but it is the first step in the process of determining who the sender may be. However, e-mails sent through Gmail show only the IP address for Google Servers, which is of no help in determining who the user is.
If you check Google’s Legal Process Transparency Report, they will issue the following information for Gmail accounts:
Subpoena:
•Subscriber registration information (e.g., name, account creation information, associated email addresses, phone number)
•Sign-in IP addresses and associated time stamps
Court Order:
•Non-content information (such as non-content email header information)
•Information obtainable with a subpoena
Search Warrant:
•Email content
•Information obtainable with a subpoena or court order
The report contains descriptions of information available from other Google services, such as Youtube, Blogger, and Google Voice which may be useful depending on the case.
So now that we’re clear on what type of information is available, how do we get it?
If you contact Google Legal and ask for it, they’ll tell you that they only accept subpoenas issued from the Northern District of California or Santa Clara Superior Court and that they only accept personal service. (No joke, if you want to read their response to me check it out here). This seemed totally absurd to me since Google has a major office smack dab in the middle of New York City and I was determined to find another way.
If you’re in New York, this is where CPLR § 3102(c) comes in handy. This neat little section provides, “[b]efore an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order.” The New York Courts have interpreted this to mean information necessary to frame a complaint and obtain the identity of a defendant. See, Toal v. Staten Island University Hospital, 300 A.D.2d 592.
The threshold for obtaining discovery under CPLR § 3102(c) is a prima facie showing of a meritorious cause of action. See id. The area where this is most contentiously litigated is in internet defamation suits because there are a lot of First Amendment concerns tied into anonymous speech on the internet. These cases boil down to whether the statements made were in fact defamatory, making out a prima facie cause of action. See e.g., Matter of Cohen v. Google Inc., 25 Misc. 3d 945 (finding anonymous blogger’s statements defamatory, warranting disclosure); cf. Matter of Greenbaum v. Google Inc., 18 Misc.3d 185 (declining to disclose identity of anonymous blogger because defamation claim was not actionable).
In my case, I have a signed order requiring Google to come to court on July 1 with IP address logs in hand and ready to turn over absent any objection from the user. Google was required to give notice to the account user that their information has been requested and the court is giving the user ten days to object.
So what I will obtain (hopefully) are the IP address logs for this particular user account, from which I will then be able to decide what my next steps in the process are. It will likely require requesting information in a similar manner from the Internet Service Provider (“ISP”) who the IP addresses are assigned to. There are no guarantees that this will lead me to the identity of the individual as the information might lead to a Starbucks, public library computer, or a proxy server in Malaysia. Either way, the IP address logs will be key in deciding the next steps to take.
