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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,…

If you are alleged to have bribed government agents outside the United States or pirated music and movies protected by the Copyright Act, then you may find yourself sitting in a federal court in Richmond, Virginia. Why? Various government agency servers are located in that court’s jurisdiction and evidence of your criminal activities may have passed through government servers or private servers located in that region.

As covered in my previous post, Cloud Computing, Social Media, and Other Internet-Based Data Transmissions Could Give Rise to Personal Jurisdiction in Distant Forums, the physical journey of internet transmissions has become a more prominent aspect of courts’ personal jurisdiction analyses, which has inevitably led to more lawsuits, both civil and criminal, involving foreign nationals. That previous post discussed a Canadian citizen being hailed to the District of Connecticut for possible trade secret violations on the basis that she accessed her former firm’s server in order to transfer documents. Another recent case from the Southern District of New York involved the Foreign Corrupt Practices Act (FCPA) and permitted the Securities Exchange Commission (SEC) to pursue its enforcement action against three Hungarian executives based upon the passage of emails through SEC servers in the US. See SEC v. Straub, No. 1:11-cv-09645 (S.D.N.Y., February 8, 2013).
Continue Reading The Internet Flows Through…Virginia: Federal Prosecutors Use Server Location to Extend Their Reach

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 Attorney General Elana Tyrangiel commented on possible reforms to the Electronic Communications Privacy Act (“ECPA”), and particularly the controversial provisions of the Stored Communications Act (“SCA”) (18 USC 2701 et seq.) which govern when the Government may compel third-party service providers like Google, Microsoft, and Twitter to disclose the contents of stored electronic communications. C-Span’s video coverage of the hearing is available here.
Continue Reading Obama Administration Supports ECPA Reforms Requiring Warrants to Compel Disclosure of Users’ Electronic Content

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 the law of search and seizure of digital devices, and other constitutional and post-indictment challenges.

I was joined on the panel by Roy Altman, Assistant U.S. Attorney for the Southern District of Florida, the Honorable Craig Shaffer, U.S. Magistrate Judge for the District of Colorado, Lisa Ghannoum with Baker & Hostetler, and Erin Nealy Cox, Executive Managing Director for Stroz Friedberg. We discussed the importance of having a meaningful “meet and confer” with the government pre-indictment relating to subpoena requests – grand jury or otherwise – from the government and the risks associated with failing to preserve information in a government investigation. We also discussed the criminal ESI protocol, its relative small impact in white collar matters, and ethical issues relating to the collection and use of social media in government investigations.
Continue Reading Reflections on the 2013 ABA National Institute on White Collar Crime

The Health Insurance Portability and Accountability Act (HIPAA) final rule published on January 25, 2013 contains important changes that affect data management organizations, such as cloud providers. In many cases, entities that have access to health information will be considered “Business Associates.” Such entities would therefore be required to comply with HIPAA’s extensive security provisions within the next six months and could face significant liability for the failure to do so. This may be particularly troublesome for cloud providers and e-discovery vendors because such requirements and potential liability may apply even where vendors do not actively solicit health information.
Continue Reading HIPAA Final Rule Applicable to Cloud Providers and Data Vendors

Last week, I spoke with Bloomberg about the challenges associated with the use of social media in government investigations and criminal matters. The video, titled Confronting an Uncertain Frontier: The Role of Social Media at Trial is posted on Bloomberg’s E-discovery Resource Center.

 In the interview, I discussed the widespread use of social media in…

Last week, I was one of the featured speakers at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” 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 social media.

Michael Yager, Director of e-discovery at Spotts Fain, presented on “E-discovery as Quantum Law.” Michael discussed how developments in e-discovery law have been no less shattering to practitioners in the “classic” practice of law than the introduction of quantum theory to physics. He described the clash of cultures within the practice of e-discovery, and also argued that the introduction of ESI has created a noticeable shift in jurisprudence related to e-discovery, causing a “cultural explosion” within a segment of the legal profession not seen in any other profession since the development of Quantum physics approximately a century ago.
Continue Reading Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

The Second Circuit’s decision in MacDermid, Inc. v. Deiter, No. 11-5388-cv (2d Cir., Dec. 26, 2012), highlights the fact that where an email goes can be as important as what it says. The court found that an employee’s knowing transmission of an email via a computer server located in Connecticut was a sufficient basis for a Connecticut court to exercise personal jurisdiction over that employee under the state’s long-arm statute. The decision suggests this is true regardless of the lack of other contacts with the forum state. The court’s analysis raises serious considerations in a world where data storage in the “cloud” is becoming increasingly common for individuals and businesses. Individuals transmitting electronic communications via servers located in far-away states—such as through Gmail®, Twitter®, FaceBook®, Yahoo®, wireless providers, and employer networks—could find themselves subject to personal jurisdiction in those states depending upon their respective long-arm statutes. The court did not have occasion to address whether the same principle would apply to a corporate defendant, but the court’s analysis suggests that companies with network or “cloud” servers located in states with which those companies otherwise have no significant contacts could find themselves subject to the jurisdiction of courts in those states.
Continue Reading Cloud Computing, Social Media, and Other Internet-Based Data Transmissions Could Give Rise to Personal Jurisdiction in Distant Forums

As I have previously written, social media evidence is the new frontier of government investigations and criminal proceedings, and social media companies are increasingly targeted by government subpoenas and search warrants in such matters. As proof of this, one need look no further than the recent transparency reports published by Twitter and Google.…

Crowell & Moring recently published its Litigation Forecast 2013. This report explores critical litigation issues, provides concise, forward-looking perspectives on trends, and identifies cases to watch in ten areas of law affecting a wide range of companies and industries in 2013 and beyond. The report includes a discussion of significant e-discovery developments, focusing on…