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Earlier this month, I was a panelist on a webinar on Personal Jurisdiction From E-Communications: Social Media, Email, IM and Cloud Computing along with Mark McGrath of Sheppard Mullin.

Our panel focused on the evolving landscape of personal jurisdiction in the online world starting with the advent of the internet to leading up to the world of cloud computing.

We started with a discussion of how the Supreme Court’s core decisions still provide useful guideposts for this fact-intensive inquiry, even as the cases shift from the physical to the digital world. The discussion started with International Shoe, which was heralded as a watershed decision in its day in 1945, decided at the dawn of interstate commerce with individuals and goods traveling farther and faster than ever before, leaving a trail of disputes in their wake. From there, we took the audience on a brief tour of Worldwide Volkswagen, Asahi, McGee International, Calder v. Jones, and Burger King – all of which still affect the ways litigants frame their position and way the courts analyze the issue in terms of minimum contacts, foreseeability, and purposeful availment (among others).
Continue Reading Reflection on Personal Jurisdiction in E-Communications

On June 20, 2013, I participated in a one-hour webinar regarding “Bring Your Own Device” (or BYOD) policies. I addressed certain e-discovery issues involving BYOD policies. An audio recording and instructional slides are available here for those who missed it. The webinar was part of a monthly series entitled Third Thursday – Crowell & Moring’s Labor and Employment Update. This series is dedicated to helping our clients stay on top of developing law, emerging compliance issues, and best practices. I had the pleasure of joining my colleagues Tom Gies and Chris Calsyn from our Labor & Employment Group on the roundtable panel.
Continue Reading Bring Your Own Device (BYOD) Policies Also Bring Risk And Cost

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…

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 to his Facebook page. As I told Michelle Bowman of Lawyers.com, “D’Ambrosio’s case is an example of the new legal issues that the recent proliferation of social media use is bringing to the attention of courts and the public.”
Continue Reading Music Lyrics Posted to Facebook Results in Criminal Charge: A Trend in the Legal Issues Surrounding Social Media Use

When journalist James Rosen became a suspect in a federal investigation into the leak of classified information, his personal emails were searched and seized by the government. He had no knowledge of this, however, because the warrant applications were filed under seal and the court permitted the government to delay providing notice to him. Although the government argued they had no obligation to notify Mr. Rosen that his email account had been seized, Magistrate Judge John Facciola ordered the government to provide such notice to Mr. Rosen. Judge Facciola’s decision was stayed and ultimately reversed by Chief Judge Royce Lamberth. This case was recently unsealed and provides an opportunity to examine the complicated issues arising from the government’s search and seizure of e-mail communications.
Continue Reading Search Warrants and the ECPA – Why the Government May Be Reading Your E-Mails Without Your Knowledge

On June 12, I will be serving a speaker for a webinar hosted by Stafford Publishing entitled “Personal Jurisdiction From E-Communications: Social Media, Websites, Email, IM and Cloud Computing.” Here is what we will be discussing:

The Internet has changed how courts view personal jurisdiction over defendants sued in a particular forum. Courts must now…

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),…

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 warrants, courts have struggled to apply traditional doctrines to modern day technology – in this case comparing mobile phones to a closed container on an arrestee’s person, such as a wallet, purse, address book or cigarette package. However, unlike a closed container, a computer – and a modern mobile phone is a computer – does not store physical objects which are in plain view once the container is opened. Moreover, the storage capability of an electronic device is not limited by the physical size of the container. Today’s mobile phones are gateway devices, allowing a user – or potentially a law enforcement officer pursuant to a lawful arrest – to access data stored in the cloud, countless photographs, text messages, location data, chats, or items located on another computer, just to name a few.
Continue Reading Mobile Phone Searches Incident to Arrest

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…

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…