Data Law Insights

Data Law Insights

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

Category Archives: Criminal Law

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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

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

Search Warrants and the ECPA – Why the Government May Be Reading Your E-Mails Without Your Knowledge

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy
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… 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

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

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

Federal Judge Denies FBI Search Warrant For Insertion Of Spyware Onto Alleged Hacker’s Computer

Posted in Criminal Law, Cybersecurity / Data Security, Government Agencies, Privacy, Rules
U.S. Magistrate Judge Stephen Smith (S.D. Tex.) recently denied a Federal Bureau of Investigation application for a search warrant, in one of the first public rejections of an FBI request to use spyware. Earlier this year, an individual was the victim of a hacker (or hackers) who gained access to his email account, which was… 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

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

U.S.-EU Framework Agreement on Data Protection in Law Enforcement Investigations Inches Forward

Posted in Criminal Law, Cybersecurity / Data Security, Privacy, Transnational Discovery
For more than a year, the United States and the European Union have been engaged in negotiations over a data protection framework covering trans-Atlantic law enforcement cooperation. Last week, U.S. Attorney General Eric Holder and EU Vice-President Viviane Reding met in Washington to discuss that and other topics. Both expressed optimism in a joint press… 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

The Internet Flows Through…Virginia: Federal Prosecutors Use Server Location to Extend Their Reach

Posted in Cloud Computing, Criminal Law, Government Agencies, Transnational Discovery
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… 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

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

The 9th Circuit Takes a Step Toward Stronger Privacy Protections for Electronically Stored Data at the Border

Posted in Criminal Law, Government Agencies, Privacy, Transnational Discovery
Last week, the 9th Circuit issued a “watershed” en banc decision in United States v. Cotterman, restoring – at least to some degree – digital privacy at US borders.  In a controversial ruling causing a split with other Circuits, the 9th Circuit created limits on the government’s ability to search electronic devices at the border,… Continue Reading

Social Media at Trial — Bloomberg Video Interview

Posted in Accessibility, Cloud Computing, Criminal Law, Ethics, Government Agencies, Privacy, Social Media
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 government… Continue Reading

Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
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… Continue Reading

Court Awards $4.5 Million In Attorneys’ Fees and Expenses as Spoliation Sanction for Bad Faith Deletion of Email and Other ESI

Posted in Criminal Law, Preservation, Sanctions, Spoliation
I have previously written about the spoliation litigation and sanctions in the DuPont v. Kolon trade secrets dispute, in which Crowell & Moring represents the plaintiff and which resulted in a $920 million jury verdict for our client DuPont. The deletion of ESI by the defendant in that case resulted in an adverse inference jury… Continue Reading

Government Requests for User Data Continues to Rise; Most Without Warrant

Posted in Cloud Computing, Criminal Law, Government Agencies, Social Media
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. In both… Continue Reading

Social Media Evidence in Government Investigations and Criminal Matters

Posted in Admissibility, Cloud Computing, Criminal Law, Ethics, Government Agencies, Preservation, Privacy, Sanctions, Social Media, Spoliation
Social media pervades our world and has evolved into one of the core pillars of modern communication, shaping how we do business, learn about and share news, and engage with family and friends.  It is also undeniably a critical, new frontier of government investigations and criminal proceedings.  In a new article published by Bloomberg and in… Continue Reading

Spoliation in Civil Litigation Charged as Criminal Obstruction of Justice

Posted in Criminal Law, Rules, Sanctions, Spoliation
While spoliation sanctions are increasingly common in civil litigation, it is rare for such conduct to be charged as criminal obstruction of justice. But in an indictment unveiled last week, the Department of Justice did just that. In a trade secrets theft case, DOJ charged the defendant, Kolon Industries, Inc., with obstruction of justice, in… Continue Reading

Appeals Court Finds Encrypted Data Beyond Reach of Government Investigators

Posted in Criminal Law
In an important decision that could have significant implications for government enforcement, the Eleventh Circuit ruled that a suspect could not be required to decrypt his computer hard drives because it would implicate his Fifth Amendment privilege and amount to the suspect’s testifying against himself. In United States v. Doe, the government seized hard drives… Continue Reading