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, 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

As I have previously written, in January 2012 and July 2012, the EU Commission has proposed a comprehensive reform of existing EU data protection rules, including a draft for a new Data Protection Regulation.

This proposal is the subject of the ordinary legislative procedure, which means it is under review by both the Council and the European Parliament as the draft has to be approved by both the European Parliament and the Council in order to become law.

The Committee for Civil Liberties, Justice and Home Affairs (LIBE) has been appointed as the main committee with responsibility for the draft Regulation in the European Parliament. LIBE has already published three working documents and has published a calendar with dates of several meetings, workshops, and hearings that will be organized until the vote in plenary. The current agenda, aiming at an orientation vote within LIBE by March/April 2013 can be found here. MEP Jan Philipp Albrecht, rapporteur for LIBE, has meanwhile published a draft report holding more than 200 pages of suggested amendments to the proposed Regulation, which can be found here. A second exchange of views will be held on the draft report in the LIBE meeting on January 21, 2013. Without entering into the details at this stage – as the report is still not final – the report (with some exceptions) does not seem to take into account criticism and concerns of businesses with respect to the draft Regulation and, if adopted, the amendments will make the new regime even stricter for businesses. It is still anticipated that by the summer of 2013, the Regulation should be ready for a trilogue with the Council and the Commission, and that the Regulation shall be put to a vote in the plenary session of the European Parliament by early 2014.
Continue Reading Privacy and Data Protection: EU Commission’s Proposal For New Data Protection Regulation – Status