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Surviving a Subpoena

How to survive a subpoena of your electronic data

The department of Justice's demand earlier this year that Google turn over customer search records has thrown a spotlight on data privacy. The Feds aren't the only ones seeking a peek--electronic-privacy consultant Ray Everett-Church says lawyers often seek electronic records to build their cases.

Google's case may have nothing to do with your business. But if your company has electronic data, a court can subpoena it. Fighting a court order can be costly, but handing over your database can expose trade secrets and leave customers feeling violated.

The good news: If a business opposes the subpoena, lawyers will often look to other sources, says Everett-Church. Google contends the DOJ could get better information doing its own online searches.

There are several arguments a company can make against giving up its data, says John Bagby, co-director of the Institute for Information Policy at Pennsylvania State University. It may be too difficult and costly for the company to comply, or the information may be more easily available elsewhere. Or perhaps the request is too broad. Google claimed all of the above and won a partial victory in March--the company had to hand over only a fraction of the data sought by the DOJ.

Smart businesses should plan ahead to avert costly legal bills, says Electronic Frontier Foundation staff attorney Kevin Bankston. Two tips:

  • Stop keeping data you dont need. Establish an electronic-records destruction schedule, and stick to it religiously. "They can't subpoena what you don't have," Bankston says.
  • Consider encryption. According to Bankston, businesses can set up privacy codes so the customer holds the password. Then, when the Feds come knocking, all the company has is gobbledygook.

One warning: If a subpoena comes, halt all document destruction until the matter is resolved. Remember, obstruction of justice is what landed Martha Stewart in prison.

This story appears in the June 2006 issue of Entrepreneur. Subscribe »

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