Insights 💭
|
Omnibus Nondisclosure Orders Challenged
November 22, 2024
The U.S. Court of Appeals for the D.C. Circuit recently heard argument on a challenge to law enforcement’s increasingly common practice of obtaining nondisclosure orders (“NDOs”) that cover an entire investigation rather than an individual piece of legal process. We have long considered these so-called “omnibus” NDOs subject to challenge for the reasons set forth in this blog post.
|
|
|
Fourth Circuit Finds No Fourth Amendment Search in Chatrie Geofence Warrant Case
July 26, 2024
In a split opinion, the Fourth Circuit ruled in United States v. Chatrie that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Google Location History data pursuant to a geofence request (or “reverse location search”) authorized by a warrant. Applying the third-party doctrine, the Court found defendant Okello Chatrie lacked a reasonable expectation of privacy in the data because two hours’ worth of location data implicated only limited privacy concerns and the information was voluntarily shared with Google. In finding no search requiring a warrant took place, the Court skirted having to address the district court’s ruling that the underlying geofence warrant was deficient under the Fourth Amendment.
|
|
|
Congress Unveils Bill That Would Overhaul Government Surveillance Laws, Including ECPA
November 17, 2023
A bipartisan group of lawmakers has introduced proposed legislation that would impose substantial restrictions on government surveillance and access to data. The Government Surveillance Reform Act (“GSRA”) is a comprehensive privacy reform bill that would: (1) reauthorize and reform Section 702 of the Foreign Intelligence Surveillance Act (“FISA”); (2) revise other aspects of FISA; and (3) amend the Electronic Communications Privacy Act (“ECPA”). If passed, the GSRA would be the most significant overhaul of ECPA since its enactment in 1986.
|
|
|
FISC-R Rules that Unnamed Company Is Not Subject to FISA Section 702 Order for Portions of Its Service
September 1, 2023
On August 23, 2023, the Office of the Director of National Intelligence (ODNI) and Department of Justice (DOJ) released redacted versions of a 2022 Foreign Intelligence Surveillance Court (FISC) Opinion and Order and related 2023 Opinion of the Foreign Intelligence Surveillance Court of Review (FISC-R) regarding whether a provider of certain services is an “electronic communication service provider” (ECSP) under the Foreign Intelligence Surveillance Act (FISA).
|
|
|
D.C. Circuit Rejects Twitter’s Challenges to Nondisclosure Order and Affirms Contempt Sanctions in Trump Search Warrant Dispute
August 14, 2023
On August 9, the U.S. Court of Appeals for the D.C. Circuit issued the public version of its decision (first issued last month) affirming a nondisclosure order (“NDO”) imposed on Twitter in connection with a Stored Communications Act (“SCA”) warrant directing the company to produce information to the government about the account @realDonaldTrump.
|
|
|
California Poised to Enact Law Prohibiting Electronic Communication Services Providers from Complying with Out-of-State Legal Process Relating to Abortion Inquiries
September 2, 2022
California is poised to enact AB-1242 which, if enacted, would prohibit California companies that provide electronic communication services from complying with out-of-state law enforcement requests related to the investigation or enforcement of laws restricting abortion.
|
|
|
Administrative Requirement for E-Scooter Location Records Not a Fourth Amendment Search
June 3, 2022
In a civil case interpreting Carpenter, the Ninth Circuit has ruled that Los Angeles did not run afoul of the Fourth Amendment by requiring e-scooter service providers to disclose historical scooter location records as part of the permitting process.
|
|
|
Federal Geofence Search Warrant Decision Emphasizes Need for Particularity
May 26, 2022
In a long-awaited decision, a federal court in Virginia ruled in United States v. Chatrie that a geofence warrant violated the Fourth Amendment, but that the fruits of the unconstitutional search could nevertheless be used against the defendant under the good faith exception to the warrant requirement.
|
|
|
Relying on Schrems II, German DPA Persuades Customer to Stop the Use of Mailchimp
April 6, 2021
The Bavarian Data Protection Authority declared that a German company’s transfer of email addresses to U.S.-based email service Mailchimp was unlawful in light of the 2020 Schrems II decision issued by the CJEU.
|
|
|
Supplementing SCCs to Solve Surveillance Shortfalls
August 20, 2020
By invalidating the EU-U.S. Privacy Shield but not rejecting wholesale the use of standard contractual clauses to transfer data to the U.S., the Court of Justice of the European Union in Schrems II left open the possibility that such transfers could continue.
|
|
|
Preparing for the First CLOUD Act Bilateral Data Access Agreement
June 9, 2020
Starting on July 8, 2020, for the first time, U.S. companies will be receiving binding legal process directly from the UK government. This change comes over two years after the CLOUD ACt's enactment and more than nine months after the United States executed the first bilateral CLOUD Act agreement with the United Kingdom.
|
|
|
Courts Can’t Put Their Finger on How to Handle Compelled Unlocking of Devices with Biometrics
April 30, 2019
Law enforcement agencies are increasingly requesting that courts allow them to compel suspects to unlock electronic devices with their biometrics. As of yet, though, courts confronted with the question have come up with no unified answer whether they can do so.
|
|
|
Utah Enacts New Restrictions on Law Enforcement Access to Users’ Data
April 3, 2019
Utah has become the first state to legislatively dictate that law enforcement must obtain a warrant based on probable cause before forcing internet service providers to turn over users’ content, location information, and other records stored by them.
|
|