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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

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 in turn used to access the individual’s bank account. The government sought a warrant to surreptitiously install software into the hacker’s computer that would extract data and take control of the computer’s digital camera to take snapshots of the user. Judge Smith examined the requirements of Federal Rule of Criminal Procedure 41(b) as well as the requirements of the 4th Amendment, and found that the government’s application was insufficient.
Continue Reading Federal Judge Denies FBI Search Warrant For Insertion Of Spyware Onto Alleged Hacker’s Computer

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…

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 release issued after the meeting, but it remains to be seen whether the enormous gap between U.S. and EU notions of data privacy can be bridged through such an agreement.

In the EU, the privacy of one’s personal data is a fundamental civil right, whereas in the U.S. such privacy considerations are routinely subordinated in the context of law enforcement investigations and prosecutions. The EU’s stringent data protection rules have thus become a recurring sticking point in joint law enforcement efforts between the two governments because the U.S. has been unable to guarantee an “adequate” level of protection for data transfers as far as the EU is concerned.
Continue Reading U.S.-EU Framework Agreement on Data Protection in Law Enforcement Investigations Inches Forward

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

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, holding that the government must have “reasonable suspicion” in order to perform a more rigorous “forensic examination” on a computer seized at the border, whereas a “manual search” for files through a computer is permitted.  As Judge McKeown, writing for the majority, described:

We are now presented with a case directly implicating substantial personal privacy interests….We rest our analysis on the reasonableness of this search, paying particular heed to the nature of electronic devices and attendant expectations of privacy.

In Cotterman, government agents performed a manual, cursory search of the defendant’s computer and determined that numerous files were password protected.  After imaging the hard drive, law enforcement officers conducted a forensic examination and discovered hundreds of child pornography images.  The defendant moved to suppress, based upon a lack of reasonable suspicion to justify the search, and the district judge granted the motion.  The government appealed.
Continue Reading The 9th Circuit Takes a Step Toward Stronger Privacy Protections for Electronically Stored Data at the Border