Last month, EFF filed an amicus brief in Echostar v. Freetech, where Echostar sought the identities of every consumer who purchased a Freetech "CoolSat" free-to-air (FTA) satellite receiver during the past five years. EFF argued that this demand, issued in discovery in a lawsuit between Echostar and Freetech, represented an unwarranted intrusion into the privacy of individual consumers. Today, the court agreed, issuing an order blocking Echostar's subpoenas.

The ruling potentially sets an important precedent, as it represents the first time a federal court has explicitly rejected a third-party subpoena on the basis of the privacy interests of nonparty consumers.

Echostar is the company behind the DISH satellite TV service. Freetech makes receivers for unencrypted, free-to-air satellite transmissions (there are many free, unencrypted satellite channels). In December 2007, Echostar sued Freetech, alleging that the Freetech CoolSat receiver was specifically designed for after-market modification to enable unauthorized reception of DISH programming. According to Echostar, Freetech "sold thousands of these FTA Receivers to consumer pirates for the sole purpose of circumventing [Echostar]'s Security System."

In the course of discovery, Echostar sent subpoenas to the distributors of CoolSat receivers, demanding that they hand over their customer lists, including the name, address, email address, and purchase details for every person to have purchased a CoolSat receiver over the past 5 years.

As EFF explained in its amicus brief, these subpoenas represent a serious intrusion into the privacy of legitimate purchasers of these FTA receivers. Not only would it be an intrusion to be contacted by Echostar about a device you purchased months or years ago, but other satellite TV companies have used customer lists to launch mass litigation campaigns against consumers. After DirecTV obtained similar customer lists in litigation in 2001, it sent more than 170,000 letters to individuals demanding "settlements" of $3,500.

In refusing to allow Echostar to obtain the CoolSat customer lists, the court specifically weighed Echostar's need for the information against the privacy interests of the customers whose information would be disclosed. The court expressed concern that "both those who purchase the FTA receivers for proper and improper purposes will be swept up in the process." The court went on to conclude that "the requests for customer lists, therefore, could lead to the perceived harassment of legitimate users and a concomitant chilling effect on the purchase and lawful use of Freetech's FTA receivers."

Kudos to the court for keeping the privacy interests of nonparties in mind as commercial litigants dispatch third-party subpoenas that would otherwise carelessly intrude into the lives of individual consumers.