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Tech savvy criminals in the United States beware! Your e-mails stored on servers abroad are discoverable by law enforcement agents in the United States. A technologically clever criminal in the United States may have set up his e-mail account with a different country code to hide e-mails abroad from law enforcement agents in the United States during an investigation. The United States District Court of the Southern District of New York did not reward the particularly tech savvy criminals when it decided In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation (“In re Warrant to Search”) on April 25, 2014. In In re Warrant to Search, law enforcement agents in the United States obtained a warrant authorizing the search and seizure of information associated with a specific web-based e-mail account that is stored at the premises of Microsoft Corporation. In response, Microsoft’s Global Criminal Compliance team complied with the warrant to the extent of producing the information stored on servers in the United States. However, the servers in the United States only contained non-content information because the target e-mail account was hosted in Dublin, Ireland, where a server stored all the content information. Thus, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad. Microsoft’s obligation to disclose customer information and records to the Government is governed by the Stored Communications Act (the “SCA”). However, Microsoft argued that Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States. The Government contended that the SCA does not implicate principles of extraterritoriality, and as such, Microsoft’s motion must be dismissed. The Court dismissed Microsoft’s motion and required it to produce the digital information from the server in Dublin. The Court found that the SCA was ambiguous regarding principles of extraterritoriality, but the structure of the statute, the legislative history, and the practical consequences undermined Microsoft’s argument. An SCA Warrant allows for law enforcement agents to obtain digital information even when it is stored on servers abroad. Criminal defendants, law enforcement agents, and internet service providers can all learn a lesson from this case. Law enforcement agents in the United States should be aware that digital information stored abroad is not necessarily beyond their grasps. Internet service providers should provide the digital information from all its servers, irrespective of the server’s location, to ensure full compliance with SCA Warrants. And finally, for all the tech savvy criminals out there, your e-mails will be discovered by law enforcement in the United States even if stored on a server in a different country. If you are concerned about hiding your e-mails from law enforcement agents in the United States, I suggest that in addition to storing your e-mails on a server abroad, you should also not use an American internet service provider, such as Microsoft. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.
The plaintiff, Torrington Co., sought to challenge a final determination made by the International Trade Administration of the United States Department of Commerce. The case centered upon the discovery requests made by the plaintiff. The plaintiff argued that it was entitled to three things: 1) a computer tape of computer instructions, 2) a computer tape of SAS data sets, and 3) a hard copy for each file transmitted by tape. The plaintiff maintained that it was entitled to this discovery because it was part of the administrative record. The court disagreed. The court found that the computer tape of computer instructions, computer tape of the SAS data sets, and the hard copies were not a part of the administrative record because not only were they not “obtained by” or “presented to” the administrative agency (the International Trade Administration), but they did not even exist. If the materials did not exist (and never existed) they are clearly not part of the administrative record. In fact, the computer tapes and hard copies could only be created after the determination by the agency; they could not possibly be part of the administrative record at all. The defendant agreed to give the plaintiff microfilmed computer printouts which contained both the computer programming instructions and the SAS data sets. Note that these microfilmed computer printouts were not the same as computer tapes (which were requested by the plaintiff.) The court cited previous cases that established two principles. First, the court was not obliged to force a defendant to produce data in a format that was most convenient for a plaintiff. Second, the court should balance the plaintiff’s need for the specific type of information with the hardship placed upon the defendant. The court held that not only had plaintiff failed to show its need for the computer tapes, but that the defendant had shown that it would suffer “extreme hardship” if it were forced to produce the computer tapes. The plaintiff attempted to bolster its position by citing Daewoo v. United States, 10 CIT 754, 650 F. Supp. 1003, in which the court ordered that all computerized data be produced including “all further refined forms of electronic storage of the data involved.” However the court distinguished the case at hand from the facts in Daewoo by pointing out that in that case, the government did not demonstrate any kind of hardship. In the present case, the requested computer tapes did not exist and requiring the defendant to produce them would have been burdensome and expensive. The court notes that according to one source it would take 7,500 hours to create a computer tape containing 15,000 pages of the printout that was already created. By the account of one affidavit, it was estimated that it would take defendant’s department staff no less than a full two weeks to produce the computer tapes. Administrative agencies have many tasks and aim for efficiency – such a discovery request would doubtless be taxing on the agency’s resources. The plaintiff also claims that it would be equally burdened if it had to produce the tapes.] The court held that when the cost, burden, and time of creating the tapes is equal on both parties, then the burden of producing the tapes falls on the party making the request. Accordingly, the court held that the defendant did not have to make the computer tapes and that the parties were obliged to use the “more convenient, less expensive or less burdensome” computer printouts that were already in existence. What should have the plaintiff done in this scenario? It is unclear why the printouts were insufficient such that computer tapes were necessary. The plaintiff should have come prepared to show why production of the computer tapes would be more taxing on itself than on the defendant-agency. Rocco Seminerio is a Seton Hall University School of Law graduate (Class of 2014). Mr. Seminerio focused his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy.
Big Brother is always watching and listening. If there’s one lesson to take away from the recent NSA scandals it’s that the government is not only capable of tracking your every digital move, but also acting on that capability. Now, according to the Third Circuit, the government can use the broad language of the Stored Communications Act to force cell phone providers to turn over a criminal suspect’s phone’s historical location data. In a lengthy and drawn-out criminal investigation, the Third Circuit became the first federal court of appeals to decide a crucial issue that required balancing a cell phone user's privacy rights with a law enforcement agency’s needs to acquire potentially vital information. The government attempted to use the Stored Communications Act to force a suspect's cell phone company to turnover cell site location information or CSLI. Hoping to prevent an unjust and unwarranted intrusion or breach of a citizen's privacy expectations, the Electronic Frontier Foundation (EFF) filed a response in opposition to the government’s efforts. The Third Circuit was then forced to determine whether or not the government could obtain this information without first establishing probable cause or acquiring a warrant. The information at issue in the matter is commonly kept by all phone companies and service providers as part of their routine business operations. Every time a call is made via a cell phone, signals are transmitted via nearby cell phone towers. These towers then collect and store data that can later be used to establish the general area where the individual was located when making the call at issue. The information would not provide the exact location of the cell phone at the time of the call, but would instead allow the government to infer as to where the party where was located. Even though this would seem like a minor distinction, in the eyes of the court it is incredibly important because it weakens any argument that the cell phone acts as a tracking device which would raise significant Fourth Amendment concerns under Supreme Court precedent. According to the exact language of the Stored Communications Act, a court can order the disclosure of this information if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or other records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703. The government argued that it met this burden because the information it was seeking was relevant and material to an investigation of narcotics trafficking and other violent crimes. The EFF attempted to combat these claims by arguing that to obtain the information the government must obtain a warrant by establishing probable cause. Ultimately, however, the court held that the information was in fact obtainable by the government without a warrant or probable cause under the language of the Stored Communications Act. According to the court, the Act’s language provided a specific test to determine whether an order granting the discovery of such information should be granted. If Congress wanted to implement a warrant requirement, it could have specifically done so. Instead, Congress chose the lesser standard of specific and articulable facts. The court, however, also went on to hold that the Act’s language actually granted a magistrate judge discretion as to whether or not to require a warrant showing probable cause. Because the Act states that an order “may be issued” rather than requiring it, a judge deciding whether or not to allow access to such information could require a showing of probable cause. Additionally, the court established that a cell phone customer does not voluntarily share his or her location information with a service provider because the customer is probably unaware that their providers are in fact collecting and storing this historical information. Although the Third Circuit’s holding is strictly limited to the collecting of historical cell phone location information, the decision ultimately has far-reaching consequences. In the field of electronic discovery, privacy is an ongoing topic of debate, especially with the recent revelations of the massive amounts of data the government is in fact already collecting. Because electronically stored information can provide a bevy of potentially vital information in easily manipulated formats, law enforcement agencies will continue to access it wherever possible. Courts will continually be asked to balance individual privacy concerns with the broad policies of discovery. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession. He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management.
In Timken Co. v. U.S., the plaintiff ("Timken" or "Plaintiff") challenged the decision of the Department of Commerce, International Trade Administration ("Commerce"), denying Plaintiff access to computer tapes submitted by defendant-intervenors (the "Defendant") in a complex trade case. Timken sought the tapes notwithstanding that it had received the very same information in paper form. Plaintiff advocated its position by discussing the hardship that would be imposed if Plaintiff had to reproduce the tapes itself. Plaintiff demonstrated that it would require 7,500 man-hours and a legion of "keypunchers," at a total cost of approximately $200,000 to duplicate what Commerce already had in its possession. With respect to the need for the tapes, Plaintiff indicated that without the tapes it would not be able to identify factual errors in the data and other mathematical or methodological errors. Commerce countered the above points by arguing that if it had to supply the tapes, it would have to expend significant energy insuring that customer names had been deleted and assisting Plaintiff with mechanical problems that may arise. Commerce also asserted that if it was compelled the tapes companies would be less likely to store information on tapes moving forward, to prevent disclosure. In reviewing the merits, the Court of International Review applied the standard expounded in the applicable legislative history; that is, "whether the need of the party requesting the information outweighs the need of the party submitting the information for continued confidential treatment." The court first concluded that the cost factored weighed in favor of Plaintiffs. Not only were Plaintiff’s costs to reproduce high, but also Plaintiff was willing to offset any costs to Commerce. This process also minimized the involvement, and therefore the burden, of Commerce. With respect to the argument that the tapes were required by Plaintiff to independently analyze the data, the court found that access to the tapes was essential for effective advocacy, and that such work by Plaintiff would not constitute a "duplication of administrative functions." Finally, the Court dismissed Commerce's argument that companies would no longer maintain data on tape: "[I]t is unlikely that the mere possibility of trade litigation in the United States would prompt foreign exporters to return to archaic business procedures." Although not articulated as such, the court engaged in a proportionality analysis typically applied to discovery disputes in federal courts. Plaintiff's willingness to offset the costs to Commerce seemed to sway the court, just as it would in a typical discovery dispute. Another principle to be extracted from this case is the value inherent in having data in a particular form. This may be an area where practitioners miss the boat. A savvy e-disco attorney will know the ins and outs of how different forms of data can be manipulated, and the form most ideal for recovering (or inhibiting recovery) of particular information. So practitioners should remember at their next meet and confer, just getting the information may not be enough—form may be critical. Adam L. Peterson is a graduate of Seton Hall University School of Law. Adam was a member of the Seton Hall Law Review and, prior to law school, Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.
Defendant Youkers was sentenced to an eight-year prison term. Youkers thereafter filed a motion for a new trial alleging that the judge who sentenced him engaged in improper communications and was not impartial. In particular, the father of Youkers’s girlfriend was one of the judge’s Facebook friends. The father also sent a message to the judge about Youkers’s pending case. Despite these potentially alarming facts, the judge testified that he knew the father because they both ran for office during the same election cycle. The judge testified that a mere Facebook friend designation was the extent of their relationship. Upon receiving the message from the father, the judge told the father that such communication was improper and he notified the appropriate individuals. To make Youkers’s allegations even weaker, the father was actually seeking leniency for Youkers. The court notes that the American Bar Association (ABA) has said in formal opinions that judges are not barred from using social media. Merely designating someone as a friend on Facebook “does not show the degree or intensity of a judge’s relationship with a person.” ABA Standing Comm. On Ethics & Prof’l Responsibility, Formal Op. 462 (2013). Accordingly the court concluded that the mere fact that the father and the judge were Facebook friends, by itself, did not suggest bias or partiality. The court concluded that there was no evidence of actual bias. Furthermore, because the judge fully complied with the Texas Committee on Judicial Ethics’ recommended procedure for treatment of ex parte communications, a reasonable person would conclude that there was no appearance of impropriety. Had the judge not followed state procedure on the treatment of ex parte communications, things might have gone differently. Judges should be very careful about all their communications and relationships over social media. Although in this case there was no communication between the judge and the father besides the father’s message and the judge’s response, a court might be willing to find bias if there was an ongoing relationship. Although a mere Facebook friendship alone does not establish anything, other communications over Facebook might have the effect of tending towards partiality. Rocco Seminerio is a 2014 Seton Hall University School of Law graduate. Mr. Seminerio focused his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University’s undergraduate program in 2011 with a degree in Philosophy. He is also interested in the life sciences.
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Don’t override your surveillance tapes or video too soon, otherwise you could be subjected to spoilation sanctions if the evidence is later needed in court. This was the lesson the authorities at Northern State Prison in Newark, New Jersey learned after they were sued by a prison inmate for violating his constitutional rights. Know your client’s over-writing policies and preserve tape or video, when it is reasonably foreseeable that the evidence would be subject to discovery.Continue Reading
The Federal Rules of Evidence (“FRE”) are notorious for their complication. Hearsay Rules continue to astound attorneys across the country. Now, in a more modern era, we have the advanced electronics capable of aiding the evidentiary process in many ways. But with a jury of lay people, it is difficult to describe the use of such equipment during a trial without the use of an expert witness.Continue Reading
In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.Continue Reading
New Jersey is among the thirty-one states to adopt a sex offender Internet registry web sites as part of “Megan’s Law” legislation. In 2000, New Jersey implemented new legislation regarding sex offenders. In A.A. v. State of N.J., convicted sex offenders challenged constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution, a state constitutional amendment which authorizes the creation of an Internet sex offender registry (“Registry”), and an amendment to “Megan’s Law” known as the Internet Registry Act, which seeks to implement the Registry and would allow unlimited public access to certain information. The Third Circuit, however, denied the registrants’ motions for preliminary injunctions and held that the state could implement such a registry.Continue Reading