Data Law Insights

Data Law Insights

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

Louisa Marion

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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

Recent Conviction Illustrates How Obscure Federal Statute Can Be Used to Criminally Prosecute Those Who Design and Sell Devices and Apps Capable of Surreptitious Monitoring

Posted in Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Privacy
In an obscure case that could have broad implications, a judge in the Eastern District of Virginia sentenced the Danish CEO of two overseas technology companies to time served and a fine of $500,000 for the advertisement and sale of a mobile application capable of surreptitiously monitoring communications and other information on a mobile device.… 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

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

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

Another University Data Breach Adds to Growing Trend

Posted in Cybersecurity / Data Security, Data Breach
The University of Maryland announced on February 19th that it is the most recent university to fall victim to a data breach. According to the University’s President, UM was the target of a “sophisticated” computer attack that exposed the personally identifiable information (PII) of over 300,000 individuals. Specifically, the hack targeted records that relate to the University’s… Continue Reading

Borderline Privacy: Electronic Border Searches after Cotterman

Posted in Cloud Computing, Criminal Law, Cybersecurity / Data Security, Government Agencies, Privacy
In the Summer issue of the American Bar Association’s Criminal Justice Magazine, I write about the Ninth Circuit’s watershed en banc ruling in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), that border agents must have “reasonable suspicion” before conducting forensic searches of laptops at the US border. The decision will likely present… Continue Reading

Good Faith Not Good Enough? Ninth Circuit May Require a Remedial Jury Instruction After Government Spoliation in a Criminal Case

Posted in Criminal Law, Government Agencies, Preservation, Sanctions, Spoliation
A finding of bad faith is not required for a remedial jury instruction when the government’s negligent destruction of evidence significantly prejudices a defendant, the Ninth Circuit ruled earlier this month in its panel decision in United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.). However, bad faith—or a showing that… Continue Reading

ECPA Reform Advances, as Senate Judiciary Committee Approves Proposed Bill

Posted in Cloud Computing, Criminal Law, Cybersecurity / Data Security, Government Agencies, Privacy, Social Media
The Senate Judiciary Committee yesterday took a significant step forward towards enhancing data privacy. By bipartisan voice vote, the Committee approved Senators Leahy and Lee’s bill (S. 607) to reform the Electronic Communications Protection Act (ECPA) and extend greater privacy protections to content stored in the cloud. As I discussed previously, ECPA, and particularly its… Continue Reading

Obama Administration Supports ECPA Reforms Requiring Warrants to Compel Disclosure of Users’ Electronic Content

Posted in Cloud Computing, Criminal Law, Cybersecurity / Data Security, Government Agencies, Privacy, Social Media
On Tuesday, March 19, 2012, the Obama Administration took a significant step toward increasing user privacy when the Department of Justice dropped its long-standing opposition to a warrant requirement before government officials can obtain content stored in the Cloud. Testifying before the U.S. House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, Acting Assistant… Continue Reading