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Google subpoenaed to turn over deleted Gmail messages

March 19, 2006

In a lawsuit brought by the Federal Trade Commission, a subpoena was sent to Google for the complete contents of a Gmail account, including deleted e-mail messages. Google's privacy policy says ''residual copies of deleted messages and accounts may take up to 60 days to be deleted from our active servers and may remain in our offline backup systems'' in perpetuity.

In November 2003, the commission sued AmeriDebt and founder Andris Pukke alleging he misused funds collected from financially struggling consumers who sought debt-management help from the nonprofit Germantown credit-counseling firm by funneling customers' funds to DebtWorks, a for-profit, private company set up by Pukke to process AmeriDebt's accounts.

AmeriDebt settled, but the courts are still trying to uncover the location of Pukke's apparently sizeable assets.

The FTC, which is seeking $170 million in refunds to consumers, has said that Pukke received $70 million from DebtWorks between 1999 and 2003 and spent large sums on himself, his wife and girlfriend. The agency said he also transferred $18.3 million to domestic and foreign trusts run by his brother or a close friend and sent an additional $2 million to an account in Latvia for his father.

Apparently, Pukke may have sent some of his money offshore to a Belize developer called Dolphin Development, partially owned by Peter Baker, and it is believed that some facets of the transactions were discussed via e-mail. Here's the tricky part: Baker is a Gmail user and apparently used Google's "Delete Forever" function in an attempt to get rid of all record of the e-mails.

However, in the Gmail terms of service, Google warns that "delete forever" does not mean that the message is necessarily gone. Their offline backup servers may contain copies of your messages in perpetuity.

The court-appointed receiver in the FTC case, Robb Evans & Associates, sent a subpoena on Nov. 1 to Google asking for the complete contents of Baker's Gmail account.

The subpoena asks for not only current e-mail but also deleted e-mail: "All documents concerning all Gmail accounts of Baker...for the period from Jan. 1, 2003, to present, including but not limited to all e-mails and messages stored in all mailboxes, folders, in-boxes, sent items and deleted items, and all links to related Web pages contained in such e-mail messages."

Baker objected to the subpoena, saying it could disclose confidential information, including attorney-client conversations.

In a Jan. 31 ruling, U.S. Magistrate Judge Elizabeth Laporte rejected Baker's request. She said his attorney could withhold "truly protected" information but must "err on the side" of disclosure.

Baker asked the judge to reconsider. On Monday, Laporte reiterated her decision, saying the argument about confidentiality "is baseless" because her earlier order creates an exception for such e-mail messages.

Google has only been ordered to turn over the emails. What will be interesting is whether or not Google is able to retrieve the emails.

Google promises to "organize the world's information", including the information you no longer value, like old personal emails you've deleted.

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