Data Law Insights

Data Law Insights

Legal insights on navigating privacy, data protection, cybersecurity, information governance, and e-discovery

Justin P. Murphy

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Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2015 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by digital privacy and e-discovery… Continue Reading

Senate Hearing Examines Internet of Things

Posted in Government Regulations & FISMA, Internet of Things, Public Sectors
Last week, the Senate Committee on Commerce, Science, and Transportation convened to hold a hearing on “The Connected World: Examining the Internet of Things.” Signaling that Congress may be interested in delving into this area, Senators pressed witnesses about the best ways to strike a balance between fostering innovation and protecting consumer interests. Senators and… Continue Reading

SEC and FINRA Issue Cybersecurity Reports

Posted in Cybersecurity / Data Security, Data Breach, Government Agencies, Public Sectors
Last week, the Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) simultaneously issued reports summarizing cybersecurity examination findings and recommending certain investor precautions. The SEC’s report, based on the results of examinations of more than 100 broker-dealers and investment advisors, made a number of notable findings, including: • More than two-thirds of… Continue Reading

Riley: A New Realm of Digital Privacy

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy
Recently, Louisa Marion and I analyzed the Supreme Court’s far-reaching decision in Riley v. California, 573 U.S. __ (2014), and its implications going forward. In Riley, Chief Justice Roberts concluded that today’s cell phones (which the Court called “minicomputers”) are fundamentally different than physical containers: their storage capacity is virtually unlimited; they contain a broad… Continue Reading

Evolving Legal Landscape of Social Media

Posted in Admissibility, Cybersecurity / Data Security, Ethics, Government Agencies, Preservation, Privacy, Social Media
Social media has become an ubiquitous means of communication in today’s society, with more than 90% of today’s online adults using social media regularly.  With this backdrop, it is no surprise that social media implicates an evolving legal landscape.  In the  “Data Law Trends & Developments: E-Discovery, Privacy, Cybersecurity & Information Governance”, on page 8, we… Continue Reading

Groundbreaking Ruling By the Supreme Court Finds for Digital Privacy

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy
In an unexpectedly sweeping opinion, a nearly united Supreme Court today recognized the fourth amendment’s protection for digital privacy. Chief Justice Roberts’ opinion in Riley v. California is grounded on the Founders’ abhorrence of general warrants and unparticularized intrusions into our private lives. It highlights the pervasiveness of cell-phone (“minicomputer”) use, as well as the volume… Continue Reading

Hot Topics in Criminal E-Discovery

Posted in Criminal Law, Government Agencies, Privacy, Rules, Sanctions, Spoliation
As part of Crowell’s “Data Law Trends & Developments:  E-Discovery, Privacy, Cyber-Security & Information Governance,” Steve Byers and I examined the hottest topics in E-Discovery in Government Investigations and Criminal Litigation.  Our report begins on page 15, and explores recent trends in this rapidly expanding field and forecasts potential developments with Federal Rule of Evidence… Continue Reading

Fresh Look at E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2014 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search… Continue Reading

Bloomberg Terminal: How Financial Services Firms Need to Adapt to Regulators’ Favorite New Source of Electronic Evidence

Posted in Criminal Law, Government Agencies, Information Management, Social Media
Emails often provide key evidence in conspiracy-related investigations and subsequent litigation. More recently, social media and text messages have provided additional evidence for such matters. In response, most companies have enacted policies to educate their employees about using these communication mediums. However, recent antitrust investigations and federal lawsuits in the financial services industry are utilizing… Continue Reading

Department Of Justice Reminds Us Again: Don’t Delete That Electronic Evidence

Posted in Criminal Law, Government Agencies, Spoliation
Last week, the Department of Justice announced that Kazuaki Fujitani, a former Denso Corporation executive, agreed to plead guilty to obstruction of justice charges in connection with an Antitrust Division price fixing investigation. Fujitani agreed to serve one year and one day in U.S. prison for destruction and concealment of records and documents under 18… Continue Reading

SEC to Focus on Corporate Cybersecurity Risks in 2014

Posted in Cybersecurity / Data Security, Government Agencies, Public Sectors
On January 9, the Securities & Exchange Commission (“SEC”) released its National Examination Priorities (“NEP”) for 2014 and once again identified cybersecurity as a heightened risk that the agency intends to scrutinize as part of its mission to protect investors.  The NEP identifies technology — specifically, companies’ governance and supervision of IT systems, information security, and… Continue Reading

Supreme Court to Decide Whether Privacy Interests and Fourth Amendment Protections Apply to Warrantless Smart Phone / Cell Phone Searches Incident to Arrest

Posted in Criminal Law, Government Agencies, Privacy
Last Friday, the Supreme Court agreed to weigh in on whether law enforcement officers need a warrant to search the contents of a smart/cell phone seized during a lawful arrest (see Washington Post and Wall Street Journal Articles).  As I’ve previously written, this issue, which has deeply divided federal and state courts, highlights the tension between individual… Continue Reading

Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

Posted in Cooperation/Meet & Confer, Preservation, Rules, Social Media, Spoliation, Technology Assisted Review
Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated… Continue Reading

Free BNA Webinar on ESI in Federal and State Criminal Actions

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States… Continue Reading

New Hampshire Becomes Latest Jurisdiction to Advise Lawyers on How to Ethically Use Social Media When Searching for Evidence on Facebook and Twitter

Posted in Ethics, Social Media
In an ethics opinion issued last month, New Hampshire joined the growing list of states and cities whose bar association ethics committee has provided its lawyers with formal guidance on the ethics of using social media to search for evidence in pending litigation. Given the ubiquity of social media use today, some may contend that… Continue Reading

New Look at E-Discovery in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2013 American Bar Association annual State of Criminal Justice, I have published a new article on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search and seizure of ESI,… Continue Reading

Music Lyrics Posted to Facebook Results in Criminal Charge: A Trend in the Legal Issues Surrounding Social Media Use

Posted in Admissibility, Cloud Computing, Criminal Law, Government Agencies, Privacy, Social Media
We commonly see news stories about law enforcement using social media to investigate, arrest or prosecute criminal defendants. Some of these cases are starting to raise interesting constitutional issues. One such case relates to Cameron D’Ambrosio, a high school senior who was arrested last month for “communicating terrorist threats” through music lyrics that were posted… Continue Reading

IRS Will Use Search Warrants To Obtain User E-mails In Criminal Investigations

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy, Rules
Earlier this month, the Internal Revenue Service issued a policy statement declaring that, going forward, it will obtain search warrants when requesting user e-mails in criminal investigations from an internet service provider.  The IRS specifically noted that it would follow the Sixth Circuit decision in U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010), which… Continue Reading

Mobile Phone Searches Incident to Arrest

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy
According to the CTIA-The Wireless Association, there are more mobile phones than people in the United States. The explosion of smart phones has fed another important and developing issue relating to ESI in government investigations and criminal litigation – the warrantless searches of mobile phones incident to a lawful arrest. As with Fourth Amendment search… Continue Reading

ESI in Government Investigations and Criminal Matters (VIDEO)

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
Back in February, I spoke at the at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” During my presentation, I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to… Continue Reading

Social Media Evidence in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Information Management, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
In conjunction with the Richmond Journal or Law and Technology’s annual survey, Adrian Fontecilla and I have published a new article: Social Media Evidence in Government Investigations and Criminal Proceedings. The article provides an in-depth look at many of the cutting edge issues raised by social media in government investigations and the criminal context, including… Continue Reading

SEC Recognizes Evolving Social Media Channels of Corporate Communication

Posted in Government Agencies, Public Sectors, Social Media
In yet another reminder of how pervasive social media use has become in our society, the SEC yesterday provided guidance regarding the use of social media outlets like Twitter and Facebook for official disclosures by publicly-traded companies. The SEC released a Report of Investigation clarifying that companies are permitted under the federal securities laws to… Continue Reading

Reflections on the 2013 ABA National Institute on White Collar Crime

Posted in Cloud Computing, Criminal Law, Government Agencies, Preservation, Privacy, Social Media
Recently I was a speaker at the 27th Annual National Institute on White Collar Crime’s “E-Discovery in Government Investigations and Criminal Litigation” panel. Our panel discussed a number of important and cutting edge issues relating to challenges faced by white collar litigants in dealing with ESI, including the preservation and production of ESI, developments in… Continue Reading

Social Media and SEC Filings

Posted in Government Agencies, Public Sectors, Social Media
Our San Francisco colleague Murray Indick has just written about new guidance from the SEC’s Investment Management Division about whether certain interactive content posted on social media should be filed publicly by a mutual fund. As Murray notes, the guidance provides real life examples of the types of communications that the Staff believes would cause… Continue Reading