Republic Of Kazakhstan v. Llc Media-consult ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE REPUBLIC OF KAZAKHSTAN, )
No. 73391-5-1
Respondent, ]
DIVISION ONE €~"j
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PUBLISHED OPINION
DOES 1-100, inclusive,
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Defendants,
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LLC MEDIA-CONSULT,
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Appellant. I FILED: February 22, 2016
Trickey, J. — The Republic of Kazakhstan initiated a California state court
lawsuit against 100 unnamed "John Doe" defendants.1 Kazakhstan alleged that
these defendants hacked into Kazakhstan's government computer network and
stole and published hundreds of privileged and confidential e-mails from high-
ranking Kazakh officials in violation of California and United States law.
In connection with that lawsuit, Kazakhstan requested that the King County
Superior Court issue a subpoena duces tecum to eNom, Inc., an Internet domain
name registration company located in Kirkland, Washington. The subpoena seeks
domain name registrant information and Internet Protocol (IP) and/or Mac
addresses for a website operated by "Respublika," an opposition newspaper based
in Kazakhstan that published several of the stolen e-mails.
On appeal, we must interpret Washington's news media shield law, RCW
5.68.010, and determine whether it protects the information sought by this
Clerk's Papers (CP) at 50-57.
No. 73391-5-1/2
subpoena. The trial court concluded that the news media shield law did not apply,
and it denied third-party LLC Media-Consult's (LMC) motion to quash subject to
certain modifications. We disagree and therefore reverse.
FACTS
Appellant LMC is a Russian limited liability company that operates the
online publication of Respublika. Irina Petrushova, Respublika's founder and
editor-in-chief, owns LMC with her brother. Petrushova founded Respublika in
2000, and the newspaper has been published online since September 2008. Its
main website is "www.respublika-kaz.info."2
Published weekly, Respublika principally covers business and politics in
Kazakhstan, a country in central Asia. According to Petrushova, Respublika is "a
forum for expressing opposition to the political regime in Kazakhstan."3 It has
consistently published articles critical of Kazakhstan's President Nursultan
Nazarbayev. As a result, Petrushova asserts, Respublika's journalists have
become targets of an aggressive intimidation campaign. In 2002, Petrushova left
Kazakhstan in fear for her life.
Petrushova continues to run Respublika's editorial board and report on
government corruption in Kazakhstan. Petrushova claims that the editorial team
established various newspapers over the years, but the government shut down all
of them. Printing houses in Kazakhstan refused to publish Respublika's
newspapers, and the editorial team was forced to publish them on home printers
and in Russia.
2 CP at 77.
3 CP at 78.
No. 73391-5-1/3
According to Petrushova, in 2010, the Kazakh government blocked access
to Respublika's online portal. As a result, in order to access Respublika's news
from Kazakhstan, Respublika's readers have to use proxy servers and other
programs that can work around domestic blocking. In 2013, a Kazakh court closed
websites associated with Respublika. In 2014, pressure on Respublika mounted
in Russia when Russian authorities seized a server that hosted Respublika's
website.
In early 2015, Kazakhstan claimed that it had discovered a major breach of
its computer systems. According to Marat Beketayev, the Executive Secretary of
the Ministry of Justice of the Republic of Kazakhstan, e-mail accounts of several
high-ranking government officials were hacked and thousands of e-mails and
documents were stolen and posted to various websites. Kazakhstan claims that
these e-mails and documents contain confidential and privileged material,
including communications between Kazakhstan and its legal advisers who were
advising the government on various sensitive matters. A website hosted by
WordPress, "https://kazaword.wordpress.com," published several of these stolen
e-mails.4 Respublika also published several ofthese e-mails, along with an article
critical of the government.
Following these events, Kazakhstan commenced an action in Santa Clara,
California superior court against 100 "John Doe" defendants, alleging violations of
California and federal law.5 Kazakhstan also commenced an action against the
4CP at 203; Report of Proceedings (RP) (Apr. 30, 2015) at 7, 12-13.
5 CP at 50-57.
No. 73391-5-1/4
unnamed Does in the United States District Court for the Southern District of New
York, seeking injunctive relief and damages.6
On March 4, 2015, Kazakhstan initiated this limited action in King County
Superior Court. Pursuant to RCW5.51.020, the uniform interstate depositions and
discovery act, Kazakhstan sought to serve a subpoena duces tecum on eNom,
Inc., a domain name registration company located in Kirkland, Washington. For
several years, eNom, Inc. has registered the domain name for Respublika's main
website: "www.respublika-kaz.info."7 eNom, Inc. offers a domain privacy service
called "ID Protect," which shields a domain name registrant's personal, identifying
information.8 Respublika uses eNom's privacy service to shield its current and
former registrants' information.
The subpoena duces tecum requested certain information associated with
Respublika's domain name. Defining "domain name" as "www.respublika-
kaz.info," it requested that eNom produce the following two9 categories of
information:
1. Documents sufficient to show all details of all current and former
registrants, including any underlying registrant using a privacy or
proxy service, of the Domain Name including, but not limited to, his
or her email address, physical address, phone number, and billing
information, including any updated or revised details since
registration.
2. Documents sufficient to show the dates, times and corresponding
IP Addresses and/or Mac Addresses from which the Domain Name
was registered, created or modified.1101
6 Br. of Appellant (LLC Media-Consult) at App. B.
7 CP at 86, 88.
8 CP at 34.
9 Initially, Kazakhstan requested three additional categories of documents but it later
withdrew these requests.
10 CP at 10.
No. 73391-5-1/5
LMC, a nonparty, moved to quash the subpoena. LMC argued that the
subpoena was oppressive and burdensome, violated Washington's news media
shield law, and ran contrary to "core constitutional values."11 It asserted that a
protective order would be ineffective and unworkable and that the court could grant
no effective relief short of quashing the subpoena.
LMC supported its motion with a declaration from Petrushova. Petrushova
detailed threats against Respublika's members. For example, she asserted that
one of Respublika's printers quit after finding a human skull on his doorstep. In
other examples, Petrushova asserted that she received a funeral wreath that
marked her for death, found a dog's headless body hung from one of Respublika's
window grates with a threatening note, and found a dog's head outside her
apartment door. She also asserted that Respublika's editorial board's office had
been set on fire and that Respublika's newsroom had been firebombed.
In her declaration, Petrushova also stated several concerns about the
consequences of disclosing information about Respublika's current and former
domain name registrants. She declared that the current owner ofthe domain is an
individual, not a company. She feared that the Kazakhstan government would
bring unfounded civil and criminal claims against the domain name registrants and
that the registrants would be at risk of physical danger, such as beating,
kidnapping, and unlawful detention. She also worried that the financiers of the
domain name would be persecuted and that the accounts would be frozen. And
11 CP at 24.
No. 73391-5-1/6
she expressed concern about the effect of this disclosure on other opposition
journalists:
Disclosure of domain registration and hosting details, both current
and former, would undoubtedly lead to enormous pressures on
Respublika's current and past registrars and hosting providers. The
disclosure would lead to requests to Respublika's registrars and
hosting providers to cancel its domains and shut down its websites.
If our main domain were cancelled or shut down, Respublika would
lose a large part of the audience that has been visiting that domain
since September 15, 2008. The precedent would also have a
tremendous chilling effect on the freedom of the press for any
remaining opposition journalists who are risking their lives to report
on Kazakhstan.[12]
Along with her declaration, Petrushova included copies of newspaper
articles detailing the political climate and media crackdown in Kazakhstan. She
also included reports from human rights organizations thatdescribed Kazakhstan's
restrictions on freedom of expression and classified Kazakhstan as one of the
world's most repressive states.
Kazakhstan opposed the motion to quash. It argued that the news media
shield law was inapplicable and that the subpoena was not burdensome or
oppressive. In support of its position, Kazakhstan provided a declaration from
Secretary Beketayev. He denied Petrushova's accusations that Kazakhstan
targeted opposition journalists. He asserted that Petrushova and her husband
were working for Mukhtar Ablyazov, a Kazakh national who has been found by an
English court to have defrauded a Kazakh bank of $4.6 billion. Secretary
Beketayev asserted that Petrushova and her husband were working on behalf of
Ablyazov to propagate the distribution of the hacked e-mails and documents.
12
CP at 89.
No. 73391-5-1/7
A hearing on LMC's motion to quash occurred on April 30, 2015. After
hearing argument from the parties, the trial court concluded that the news media
shield law was inapplicable. But the court decided to limit discovery in two ways.
First, the court ruled that Kazakhstan could not obtain billing information, and it
struck this category from the subpoena. Second, the court limited the produced
records to "Attorneys' Eyes Only."13 The trial court denied LMC's motion to quash
the subpoena subject to these modifications. Itentered an order stating as follows:
[e]Nom shall produce the documents in categories 1 and 2 of the
subpoena, with the exception of "billing information," by Monday,
May 4, 2015. Categories 3, 4, [and] 5 are withdrawn by
[Kazakhstan]. The produced records shall be for attorneys' eyes
only.'14]
LMC appealed to this court. A commissioner of this court granted LMC's
motion for an emergency stay of the trial court's order.
ANALYSIS
We review a trial court's order granting or denying a motion to quash a
subpoena for abuse of discretion. Euaster v. City of Spokane, 121 Wash. App. 799,
807, 91 P.3d 117 (2004). We also review a trial court's discovery order for an
abuse of discretion. T.S. v. Bov Scouts of Am., 157 Wash. 2d 416, 423, 138 P.3d
1053 (2006). A court abuses its discretion ifits decision is manifestly unreasonable
or exercised on untenable grounds or reasons. Eugster, 121 Wash. App. at 807.
A court shall quash a subpoena ifit requires disclosure of privileged or other
protected information and no exception or waiver applies. CR 45(c)(3)(A)(iii).
13RP(Apr. 30, 2015) at 30-31.
14 CP at 412.
No. 73391-5-1/8
Washington News Media Shield Law
LMC argues that the trial court erred in its interpretation of Washington's
news media shield law. It contends that this shield law applies to the parties and
records sought in this case, because the purpose of the subpoena is to identify a
confidential source. We agree.
In general, "[t]he burden of showing that a privilege applies in any given
situation rests entirely upon the entity asserting the privilege." Guillen v. Pierce
County, 144 Wash. 2d 696, 716, 31 P.3d 628 (2001), reversed in part. Pierce County
v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). Accordingly,
LMC has the burden of showing that the news media shield law applies.
No court has interpreted Washington's news media shield law. In
determining the meaning and scope of a statute, we apply general principles of
statutory construction. State v. Chester, 133 Wash. 2d 15, 21, 940 P.2d 1374 (1997).
Our primary purpose is to ascertain and effectuate the legislature's intent.
Anderson v. Dussault, 181 Wash. 2d 360, 368, 333 P.3d 395 (2014). We first
examine the plain meaning of the statute. "When determining a statute's plain
meaning, we consider 'the ordinary meaning ofwords, the basic rules of grammar,
and the statutory context to conclude what the legislature has provided for in the
statute and related statutes.'" Darkenwald v. Emp't Sec. Dep't, 183 Wash. 2d 237,
245, 350 P.3d 647 (2015) (quoting In re Forfeiture ofOne 1970 Chevrolet Chevelle,
166 Wash. 2d 834, 838-39, 215 P.3d 166 (2009)). If the meaning is plain on its face,
we give effect to that plain meaning. If the statute is ambiguous, we may look to
other aids of statutory construction, such as the legislative history, to determine
8
No. 73391-5-1/9
the legislature's intent. State v. A.G.S., 182 Wash. 2d 273, 277-78, 340 P.3d 830
(2014). Statutory construction is an issue of law that we review de novo.
Washington's news media shield law has its origins in common law. The
United States Supreme Court left it to individual states to determine how broadly
to recognize a reporter's privilege. Branzburg v. Haves, 408 U.S. 665, 706, 92 S.
Ct. 2646, 33 L. Ed. 2d 626 (1972). In Washington, our courts first recognized the
privilege in Senear v. Daily Journal-American, 97 Wash. 2d 148, 641 P.2d 1180
(1982). There, the Supreme Court held that journalists have a qualified common
law privilege with respect to their sources of information, but it confined the
privilege to civil cases. Senear, 97 Wash. 2d at 151, 155. Two years later, in State
v. Rinaldo, 102 Wash. 2d 749, 755, 689 P.2d 392 (1984), the Supreme Court
extended the qualified common law privilege for journalists to criminal cases.
In 2007, the legislature codified this privilege in RCW 5.68.010. In doing
so, it extended the privilege both to members of the news media and to nonnews
media parties.
RCW 5.68.010(1) applies to the "news media."15 Under subsection (1), no
judicial, legislative, administrative, or other body may compel the news media to
testify, produce, or otherwise disclose:
15 The term "news media" is defined by the statute as follows:
"(a) Any newspaper, magazine or other periodical, book publisher, news
agency, wire service, radio ortelevision station ornetwork, cable orsatellite
station or network, or audio or audiovisual production company, or any
entity that is in the regular business of news gathering and disseminating
news or information to the public by any means, including, but not limited
to, print, broadcast, photographic, mechanical, internet, or electronic
distribution;
(b) Any person who is or has been an employee, agent, or independent
contractor of any entity listed in (a) of this subsection, who is or has been
No. 73391-5-1/10
(a) The identity of a source of any news or information or any
information that would tend to identify the source where such source
has a reasonable expectation of confidentiality; or
(b) Any news or information obtained or prepared by the news media
in its capacity in gathering, receiving, or processing news or
information for potential communication to the public, including, but
not limited to, any notes, outtakes, photographs, video or sound
tapes, film, or other data of whatever sort in any medium now known
or hereafter devised. This does not include physical evidence of a
crime.
RCW 5.68.010(2) provides that a court may compel disclosure of the news
or information described in subsection (1)(b) under certain circumstances. Thus,
as the legislature explained in its final bill report, the news media has an absolute
privilege with respect to the information contained in subsection (1)(a), and it has
a qualified privilege with respect to the information contained in subsection (1)(b).
Final B. Rep. on H.B. 1366, 60th Leg., Reg. Sess. (Wash. 2007).
Washington's news media shield law also contains a provision for nonnews
media parties. That subsection is RCW 5.68.010(3). In relevant part, it states:
The protection from compelled disclosure contained in subsection (1)
of this section also applies to any subpoena issued to, or other
compulsory process against, a nonnews media party where such
subpoena or process seeks records, information, or other
communications relating to business transactions between such
nonnews media party and the news media for the purpose of
discovering the identity of a source or obtaining news or information
described in subsection (1) of this section. . ..
engaged in bona fide news gathering for such entity, and who obtained or
prepared the news or information that is sought while serving in that
capacity; or
(c) Any parent, subsidiary, oraffiliate of the entities listed in (a) or(b) of this
subsection to the extent that the subpoena or other compulsory process
seeks news or information described in subsection (1) of this section."
RCW 5.68.010(5)(a),(b),(c).
10
No. 73391-5-1/11
Here, Kazakhstan's subpoena seeks information from eNom, Inc., an
Internet domain name registration company. The parties do not dispute that eNom
is a nonnews media party, and thus, the relevant statutory provision is RCW
5.68.010(3).
The parties also do not dispute that the information and records sought in
this case fall within the scope of RCW 5.68.010(3), that is, they are "records,
information, or other communications relating to business transactions between
such nonnews media party and the news media." Kazakhstan seeks:
1. Documents sufficient to show all details of all current and former
registrants, including any underlying registrant using a privacy or
proxy service, of the Domain Name including, but not limited to, his
or her email address, physical address, phone number, and billing
information,'16) including any updated or revised details since
registration.
2. Documents sufficient to show the dates, times and corresponding
IP Addresses and/or Mac Addresses from which the Domain Name
was registered, created or modified.1171
The heart of the dispute is whether this subpoena seeks these records and
information "for the purpose of discovering the identity of a source or obtaining
news or information described in subsection (1) of this section." RCW5.68.010(3).
Again, subsection (1) protects against disclosure of, among other things, "The
identity of a source of any news or information or any information that would tend
to identify the source where such source has a reasonable expectation of
confidentiality." RCW 5.68.010(1)(a).
16 The trial court struck "billing information" from the subpoena. RP (Apr. 30, 2015) at 29.
17 CP at 3.
11
No. 73391-5-1/12
As Kazakhstan stated in the trial court and on appeal, it seeks the
documents in this subpoena for the purpose of identifying the individual who
illegally hacked into the e-mail accounts and stole the confidential materials.
Specifically, it seeks the IP and Mac addresses to cross-reference against IP
addresses that accessed Kazakh government servers at the time of the alleged
hacking. And it seeks the domain name registrants' identities because they "can
help confirm who hacked into Kazakhstan's computers and stole privileged
documents."18
Kazakhstan seeks to establish either that the registrants are the hackers, or
that they have information that can lead to the hackers. Both purposes are
prohibited by the shield law. By seeking to establish that the registrants are the
hackers, Kazakhstan's purpose is to identify "a source ofany news or information."
RCW 5.68.010(1 )(a). By seeking to establish a link to the hackers, Kazakhstan's
purpose is to obtain information "that would tend to identify" a source of news or
information. RCW 5.68.010(1 )(a). Accordingly, this subpoena falls within the plain
language of the statute.
Kazakhstan argues that in journalist parlance the word "source" is a term of
art.19 It cites several cases and technical definitions to support this argument,
including one authority that defines "source" as a "[pjerson, record, document or
event that provides the information for the story."20 Relying on these definitions,
Kazakhstan contends that for the news media shield law to apply, LMC must
18 Br. of Resp'tat43.
19 Br. of Resp't at 27.
20 Br. of Resp't at 28 (citing The Wall Street Journal Glossary of Terms: Journalism,
http://www.info.wsj.com/college/glossary.journalism.pdf).
12
No. 73391-5-1/13
establish that the registrant is the source that provided the stolen materials directly
to Respublika's journalist, or that the registrant would tend to identify the source
that provided the stolen materials directly to Respublika's journalist.
Kazakhstan further claims that LMC is unable to do this, given its
statements that it obtained the e-mails from a public source—the WordPress
website. In New York federal court, LMC filed a letter21 stating that "Respublika
found the documents the same way the rest of the world did—after 69 gigabytes
of documents were anonymously posted to kazaword.wordpress.com."22 LMC's
attorney made similar representations to this court at oral argument for this appeal.
We decline to read the statute so narrowly. The plain language of RCW
5.68.010(1 )(a) is very broad. It protects against disclosure of the identity of a
source of any news or information. It also protects against the disclosure of any
information that would tend to identify a source. By requesting registrant
information and IP addresses for the purpose of discovering the identity of the
hackers, Kazakhstan impermissibly seeks information that falls within the plain
language of RCW 5.68.010(1 )(a). Accordingly, LMC's statement that it obtained
the stolen materials from a third-party website does not prevent it from invoking
the news media shield law.
CONCLUSION
We hold that the Washington news media shield law prevents disclosure of
the information sought by this subpoena. Thetrial court abused its discretion when
21 We previously granted Kazakhstan's motion to supplement the record with this
additional evidence.
22 Republic of Kazakhstan's Motion to Permit Additional Evidence on Review at Ex. A.
13
No. 73391-5-1/14
it denied LMC's motion to quash. In light of this conclusion, we need not address
LMC's arguments that the discovery order should be reversed because
Kazakhstan is engaging in improper claim splitting or because the subpoena
violates the Washington Constitution. We also need not address LMC's arguments
that the discovery order is burdensome and oppressive.
We reverse the denial of the motion to quash the subpoena and remand to
the trial court to dismiss the action.
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