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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

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…

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…

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,…

In yet another reminder of how pervasive social media use has become in our society, the SEC yesterday provided guidance regarding the use of social media outlets like Twitter and Facebook for official disclosures by publicly-traded companies. The SEC released a Report of Investigation clarifying that companies are permitted under the federal securities laws to use social media—including the personal Facebook and Twitter accounts of company executives—to disseminate information such as company metrics as long as the company has taken sufficient steps to alert the investing public that the social media account in question is a “recognized channel of distribution” for material information about the company.

The SEC also announced that they would not pursue an enforcement action against Netflix nor its CEO, Reed Hastings, because the Commission recognized the market’s uncertainty about the application of Regulation FD (Fair Disclosure) to social media. The SEC’s Report, issued in conjunction with a press release, marks the conclusion of the SEC’s investigation into Netflix and Mr. Hastings over a June 2012 Facebook post that Mr. Hastings made on his personal page. In that post, Mr. Hastings announced that Netflix’s monthly online viewing had exceeded one billion hours for the first time, which caused Netflix’s share price to immediately jump significantly because it represented a nearly 50% increase over a six month period. Because Netflix had not released the information to investors in any other format, and because the SEC’s 2008 Guidance on the Use of Company Websites merely addressed websites, blogs and RSS feeds, the SEC investigated whether Mr. Hasting’s Facebook post was in compliance with Regulation FD and the Commission’s 2008 Guidance.
Continue Reading SEC Recognizes Evolving Social Media Channels of Corporate Communication

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