Question of the day
Thursday, Sep 19, 2019 - Posted by Rich Miller
* Tony Arnold at WBEZ…
The trouble began when police officers showed up at Ellen’s house late one night.
He contacted police and requested a wellness check on their young daughter. But police didn’t find anything wrong with the girl, said Ellen.
But then, she said, he became obsessive. He continued requesting wellness checks on the little girl even though police never found anything wrong. In a court filing, Ellen said he would call and text so much — he even started sending letters to her house every day — that she felt like she was being stalked. (WBEZ is identifying her with a pseudonym for her family’s safety.)
She said even the cops eventually got sick of coming out and suggested she get a restraining order against her ex.
With the order of protection in place, Ellen said she also changed her cell phone number and email address. She even bought a new car with a new license plate — all to make it harder for her troublesome ex to contact her.
But a few months later, Ellen’s ex obtained all that information — and much more — without her knowing.
That’s because he opened a court case to which Ellen wasn’t even a party, then subpoenaed the Illinois Tollway for I-Pass transponder records that would show her movements on the state’s tollways.
The tollway complied with that legal request, and also turned over information about Ellen’s new cell phone number, email address, credit card and license plate. Ellen’s ex-boyfriend also requested similar private information about her parents, and the tollway turned all of it over — without ever notifying Ellen or her family.
Only a portion of her credit card number was released, but still.
Go read the whole thing, please.
* The Question: Should the General Assembly limit subpoena power of Tollway I-Pass transponder records? Don’t forget to explain your answer.
- Amalia - Thursday, Sep 19, 19 @ 3:16 pm:
Yes. This is shocking. and it reminds me of the boyfriend loophole that Amy Klobuchar is trying to get passed in Congress to restrict guns in such situations. Stalkers will find their way around. A contact to the person whose records are being subpoenaed would be appropriate, right?
- FormerParatrooper - Thursday, Sep 19, 19 @ 3:23 pm:
The information should only be released to the individual who owns the transponder and to law enforcement with an appropriate warrant.
- Roman - Thursday, Sep 19, 19 @ 3:26 pm:
Yes. What an awful situation…and I blame the judge who issued the subpoena much more than the Tollway for complying with it. The GA should put some strict guard rails in place for judges to follow.
And I’ll take @Amalia’s suggestion a step further: make sure the target of the subpoena in a civil case is served and notified before the judge even decides to grant the order so he or she has an opportunity to contest the subpoena in court before it is issued.
- DuPage Saint - Thursday, Sep 19, 19 @ 3:28 pm:
At very least tollway should be required to notify person that a subpoena is out there and then wait 30 days before complying to give person time to object
- DIstant watcher - Thursday, Sep 19, 19 @ 3:29 pm:
Good luck getting federal judges to respect state laws limiting access to state records. It might be better to require ISTHA to delete records in a very short timespan, but they’d still have some discoverable records.
- Jake From Elwood - Thursday, Sep 19, 19 @ 3:33 pm:
Redact private information like you are required to do in responding to a FOIA. Names, addresses, DL, license plates.
Easy legislative fix if they want to do it.
- JSS - Thursday, Sep 19, 19 @ 3:42 pm:
Yes, and expand it to every state and local government body as well. I handled responding to subpoenas for a state agency and there is virtually no restrictions, with the exception of health information, on the release of private information in response to a subpoena. Short of the subpoena being legally deficient, a public body would be in contempt if they fail to respond to the subpoena.
In civil matters there is little to no involvement by the judge in subpoenas, they can be issued by attorneys or signed off on by the Circuit Clerk, which basically involves a party taking the subpoena to the Clerk’s office for a stamp. The Clerk’s office is not looking at the content of the subpoena at all, so there is no oversight. The other party to the civil case is to receive notice of the subpoena, but that is the responsibility of the person sending out the subpoena, not the Court.
- Been There - Thursday, Sep 19, 19 @ 4:08 pm:
===In civil matters there is little to no involvement by the judge in subpoenas, they can be issued by attorneys or signed off on by the Circuit Clerk, which basically involves a party taking the subpoena to the Clerk’s office for a stamp. The Clerk’s office is not looking at the content of the subpoena at all, so there is no oversight. The other party to the civil case is to receive notice of the subpoena, but that is the responsibility of the person sending out the subpoena, not the Court. ====
I’m not an attorney but I would assume if he used an attorney that person should have some ramifications. My guess is he probably didn’t or just had an attorney friend who advised him how to do it himself. Something definitely should be done by the GA on this.
- A guy - Thursday, Sep 19, 19 @ 4:19 pm:
Yes. This story alone provides enough of an explanation.
- JoanP - Thursday, Sep 19, 19 @ 4:22 pm:
Wish the article would be clearer about where the case was filed, what the basis was, and who the defendant was (I presume the ex was the plaintiff).
=It’s not clear whether the tollway has ever rejected any subpoena for its customers’ data.=
The Tollway cannot simply “reject” a subpoena, not unless someone wants to be held in contempt of court. What they OUGHT to do is to file motions to quash, and let the party who issued the subpoena explain to the court why the information requested is subject to disclosure.
And state law needs to be changed to require the plaintiff to notify the person whose records are being sought, and give that person an opportunity to object.
- Thoughts matter - Thursday, Sep 19, 19 @ 4:29 pm:
What kind of a court case would require tollway and vehicle records on a car owned by someone that was not a party to the case? I’d really like that question answered as to why the court granted that access to the ex-boyfriend. Why would t information was given to him rather than to his lawyer or a law enforcement agency investigating whatever the matter was about?
- chuddery - Thursday, Sep 19, 19 @ 4:30 pm:
==Wish the article would be clearer about where the case was filed, what the basis was, and who the defendant was (I presume the ex was the plaintiff).==
Agreed, that would be very helpful information. I’m having a hard time understanding the need for a third party’s transponder data.
I think the appropriate fix is to require the Tollway to notify the person whose records are being requested when a subpoena is received. When I was lawyer for another state, we frequently issued requests to Google and Yahoo for emails, and they had that policy, unless you could cite to some statute requiring confidentiality.
- Bilbo - Thursday, Sep 19, 19 @ 4:30 pm:
That’s because he opened a court case to which Ellen wasn’t even a party, then subpoenaed the Illinois Tollway for I-Pass transponder records that would show her movements on the state’s tollways.
This doesn’t even make sense from a litigation standpoint. If she’s not a party, she is (obviously) not subject to a proper subpoena. She can however, file a rule to show cause as to why the plaintiff should not be held in contempt for abusing the court process.
- thoughts matter - Thursday, Sep 19, 19 @ 4:32 pm:
Same question about her parents info. Couldn’t have been a custody case because ‘Ellen’ would have been named and someone would have known better than to give the info to an ex-boyfriend with a restraining order.
- Ron Burgundy - Thursday, Sep 19, 19 @ 4:42 pm:
This is pretty outrageous and should be curtailed by law. I too would be interested to know the particulars of the “case” and how this “discovery” was not abuse of process for which the ex (and attorney if there was one) could be sanctioned. Attorneys are also ethically bound to be candid to the court, be truthful in statements to others and to respect the rights of third persons.
- RFR - Thursday, Sep 19, 19 @ 4:55 pm:
Yes, the law should be changed so that the person whose information is requested receives notice of the subpoena, and thus has an opportunity to object to it. Because subpoenas are generally issued without Court supervision, and the third party respondent is not particularly incented to fight the subpoena on behalf of the customer, the customer should receive notice and have the opportunity to object.
- People caring loudly - Thursday, Sep 19, 19 @ 4:57 pm:
How is this not a violation of the Address Confidentiality for Victims of Domestic Violence Act?
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2101&ChapterID=59
- Ron Burgundy - Thursday, Sep 19, 19 @ 5:46 pm:
Have to apply for that act to be applicable it appears.
- common sense - Thursday, Sep 19, 19 @ 6:30 pm:
Unless there is reason not to, if records are pulled up that has your information, you should be notified. There should be a process such as a background check of some sort to eliminate this. But, I would like to know what the judge signed off at and why.
But, no, a judge signs a subpoena, it should be subpoenaed. Personally, I would want iPass to delete the information after a set number of days.
- Leslie K - Thursday, Sep 19, 19 @ 6:46 pm:
===she felt like she was being stalked==
She was being stalked; she didn’t just feel like it. Speaking from experience, and I know you can forget a seemingly little thing when trying to go dark (paying cash on tollway is still possible, although it costs more).
I would like to see notice and opportunity to object before info is released in civil cases. A person with an order of protection can submit that evidence; a person just cheating on the wife he is divorcing (also in the story) just might not have a good argument.
For criminal cases, tollway info could be added to Illinois’ Freedom from Location Surveillance statute. It contains limited exceptions for exigent circumstances:
http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3582&ChapAct=725%A0ILCS%A0168/&ChapterID=54&ChapterName=CRIMINAL%20PROCEDURE&ActName=Freedom%20From%20Location%20Surveillance%20Act.
I’m a little uncomfortable with a short time-window for just deleting the information. I’ve had to use historical data to justify getting reimbursed by my employer when a trip was challenged. Although I suppose I could just get in the habit of printing the info immediately after a trip in case I need it later.
- Just Me - Thursday, Sep 19, 19 @ 8:35 pm:
DuPage Saint has it right. There are legit reasons for people to get access to the transponders of people they are suing, but the people should know that information is about to be given out.
- Amalia - Thursday, Sep 19, 19 @ 9:07 pm:
another thought…who is the attorney who did the work for the guy? defense attorneys in criminal cases often get information which they do not (for safety reasons) pass on to their clients. should this attorney be referred to IARDC for investigation? cause I sure would do that if I knew that woman.
- Streamwood Retiree - Thursday, Sep 19, 19 @ 9:56 pm:
=Personally, I would want iPass to delete the information after a set number of days.=
I would not. If I submit a claim for expenses, I want a record to show that I was actually on the Toll road, when and how much I spent.
Getting confidential information by subpeona of a non-party to a court case seems like a violation of Fifth amendment rights. Or is it fourth amendment? Unreasonable search and seizure.
Can someone just subpeona my bank records if they are suing someone else? My medical records? My wife can’t even find out my test results, but anyone else can by going to court and suing someone else?
- Ares - Thursday, Sep 19, 19 @ 10:04 pm:
1. Judges can require protective orders to restrict disclosure of credit card data. Protective orders are standard for medical records these days.
2. Ellen needs to consult with an attorney to object to the release of the information. I bet that the other parties have no clue what is going on.
3. There may be an argument that the subpoena violated the order of protection.
It sounds like there is a lot more to this story than what can be reported.
- Mama - Friday, Sep 20, 19 @ 12:29 pm:
Yes because the person who requested it could be a mental case or a future mass murder or a foreign agent. Plus the subpoena violated the judge’s order of protection.
- Mama - Friday, Sep 20, 19 @ 12:34 pm:
I agree with Jake From Elwood - Thursday, Sep 19, 19 @ 3:33 pm- there is an easy and cheap way to fix this problem and protect the person who is being stalked.