A federal judge in the Southern District of New York upheld a magistrate judge’s decision that requires Microsoft to turn over to federal prosecutor customer email content stored in an overseas Microsoft data center. Ruling from the bench, Chief Judge Loretta Preska concluded that Microsoft must comply with a U.S. search warrant for customer emails,

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

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

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

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

We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the report highlights key cases and issues to watch in 11 areas of data law, including: information governance, cybersecurity, social media, technology-assisted review, criminal law, regulatory, cooperation, privacy, cross border transfers, bring your own device (BYOD), and privilege.
Continue Reading Crowell & Moring Releases “Data Law Trends & Developments” and Announces Expanded “Data Law Insights” Blog

In a remarkable decision addressing the reach of search warrants aimed at personal data stored by a third party in the cloud, a court ruled last week that an internet service provider (“ISP”) can be compelled to produce personal information located outside of the U.S. The decision by Magistrate Judge James Francis (S.D.N.Y.) denied Microsoft Corporation’s motion to quash a warrant requiring production of customer email content and related data stored on a server located in Dublin, Ireland. If adopted by other courts, the ruling could have far-reaching implications not only in the context of overseas cloud storage, but the privacy of personal data stored on third- party servers generally.

The specific issue addressed by the court concerns application of the infamously antiquated Stored Communications Act (“SCA”) of 1986, which allows the U.S. government to obtain information by subpoena, court order, or warrant from third parties such as ISPs. On December 4, 2013, the court approved the government’s request for a SCA search warrant to Microsoft seeking virtually all content and data associated with a particular email account. Microsoft produced all relevant information stored on its domestic servers, but moved to quash the warrant to the extent it sought information stored at its datacenter located in Dublin, arguing that U.S. courts are not authorized to issue extraterritorial search warrants. Notably, it is not clear from the decision whether the owner of the subject email account is a U.S. resident.
Continue Reading Court Holds That U.S. Government Can Seize Email Data Stored Overseas and Questions Applicability of Fourth Amendment to “Information Communicated Through the Internet”

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 electronic communications made via Bloomberg Terminal as key evidence. The reported Bloomberg chat evidence in these cases makes clear that companies should reassess whether their internal compliance policies and training need to be updated to mitigate the risk that Bloomberg Terminal evidence – and not just emails and social media content – could create legal liability for the company.
Continue Reading Bloomberg Terminal: How Financial Services Firms Need to Adapt to Regulators’ Favorite New Source of Electronic Evidence

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

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 privacy interests and applying the Fourth Amendment – a document drafted hundreds of years ago, when mail could take months to travel across the Atlantic – to today’s technology, when data can span the globe in a matter of seconds.

The two cases are:  Riley v. California, stemming from a decision by the California Court of Appeal, and United States v. Wurie, an appeal from a decision by the U.S. Court of Appeals for the First Circuit.  With regard to the Wurie decision, the First Circuit’s denial of the government’s petition for en banc review is especially noteworthy.  There, Chief Judge Lynch noted that the case clearly merited en banc review, but he voted to deny such a rehearing:
Continue Reading Supreme Court to Decide Whether Privacy Interests and Fourth Amendment Protections Apply to Warrantless Smart Phone / Cell Phone Searches Incident to Arrest