This case involves ACT, a career guidance service firm that assists job seekers throughout their job search, suing Daniel Drasin, the administrator of a blog known as Random Convergence. According to ACT, Drasin exercises editorial control over the blog. ACT complains that the blog disparage ACT's services and damages ACT's business and reputation. On March 11, 2013, Magistrate Judge Kristin Mix granted ACT's motion to serve third party subpoenas on Drasin, demanding that he produce the name and contact information for each of the people who posted disparaging remarks on Drasin’s blog. On April 18, 2013, Drasin, then self-represented, filed a third-party motion to quash the subpoenas, stating that they violated the bloggers’ rights to First Amendment right to anonymous speech. He also argued that most individuals who posted comments on the Blog did so anonymously, and he explained that he had no records of those who chose to remain anonymous. The court sided with Drasin and quashed the subpoena. The court found that the Subpoena imposes two types of burden on Drasin. First, in order to comply with the subpoena, Drasin must surrender his personal hard drives to ACT for up to thirty days. Personal computers generally cannot function without their hard drives, so this requirement would force Drasin to spend up to thirty days without the use of his personal computer. Second, forcing Drasin to surrender his hard drives to ACT would give ACT access to Drasin's personal files. Moreover, ACT has alternative means to obtain the information it seeks, such as serving a subpoena on Google. The court also found persuasive that the benefits of the Subpoena appear to be minimal, as there is no indication in the record that Drasin possesses any information that would be relevant in the Colorado Action beyond that which he has already provided. The takeaway message is that subpoenas can be quashed if discovery imposes an undue burden, if the information is irrelevant to the action, and if there are other avenues from which the information can be obtained. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc. Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this? Sign up for our post notification newsletter, here

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.

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.

On July 31, 1996, plaintiff Omega Engineering Corp. ("Omega"), a New Jersey based company, lost its computer programs relating to design and production permanently from its system. Omega manufactured “highly specialized and sophisticated industrial process measurement devices and control equipment” for NASA and the United States Navy. The deletion of these programs debilitated their ability for manufacturing as well as costed the company millions of dollars in contracts and sales. From 1985 to July 10, 1996, defendant Timothy Lloyd worked as the computer system administrator at Omega. He trained with the Novell computer network and installed it to Omega’s computer system. The program worked to ensure that all of Omega’s documents could be kept on a central file server. Lloyd was the only Omega employee to maintain the Novell client and have “top-level security access” to it; however, the defense asserted that others at the company had access. According to a government expert, access "means that ... [an] account has full access to everything on the server." Lloyd was also the only employee in charge of backing up the information to the server. In 1994 or 1995, Lloyd became difficult. The company moved him laterally in hopes of improving his behavior. A government witness testified that even though it was a lateral move, it was in fact, considered a demotion by the company. Lloyd’s new supervisor asked him about the back-up system and wanted him to loop a couple more people in but he never did. Moreover, he instituted a company-wide policy that employees were no longer allowed to make personal backups of their files. On top of the above issues, there was also a “substandard performance review and raise.” The combination of the two factors, according to the government, showed Lloyd that his employment with the company would soon be terminated. This established Lloyd’s motive to sabotage the Omega computer system. On July 10, 1006, Lloyd was terminated. On July 31, 1996, Omega’s file server would not start up. On July 31, “Lloyd told a third party, that "everybody's job at Omega is in jeopardy.” days later it was realized that all of the information contained on it were permanently lost. More than 1,200 of Omega’s programs were deleted and, as per Lloyd’s policy, none of the employees had their own personal backups. There was no way for any of these programs to be recovered. A search warrant conducted on Lloyd’s house turned up some backup tapes and a file server master hard drive. Experts hired by Omega found that the deletion of information was “intentional and only someone with supervisory-level access to the network could have accomplished such a feat.” The commands necessary to pull off such a purge were characterized as a “time bomb” set to go off on July 31st when an employee logged into the system. There was evidence found by these experts of Lloyd testing these specific commands three different times. This string of commands was further found on the hard drive that was in Lloyd’s home. Lloyd was convicted of a federal count of computer sabotage. It was remanded due to a jury member’s claimed use of outside knowledge during deliberations. Julie received her J.D. from Seton Hall University School of Law in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.