Thursday, September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “iDefense: Strategic & Ethical Issues in the Digital Age,” Thursday, September 30, 2010
Moderator: Gerald B. Lefcourt
The panel was moderated by Gerald Lefcourt and included defense lawyers Elkan Abromowitz, Mark Hellerer, Daniel Gelb, and Eric Mazur, a forensic expert from Navigant Consulting.
Gerry introduced the panel, speaking about the sea change in the law and life arising out of the explosion of technological changes such as smart phones that have us carrying our personal information about all our contacts, our emails, a GPS device that allow others to know where we are at all times, our photos, and a history of our web browsing.
Elkan Abromowitz addressed three issues. First, Elkan spoke about the Fourth Amendment’s prohibition on unreasonable searches of papers and effects in the modern age when people have all types of private information on their computers, desktops or blackberries. The Ninth Circuit has held that law enforcement can look at information on a laptop at a border search – for any person entering or leaving the country–even in the absence of reasonable suspicion. (By contrast, reasonable suspicion is still required for a personal search, even though most of us carry far more information on our laptops than on our physical bodies!).
Second, Elkan spoke about the Balco case, in which the Ninth Circuit restricted the ability of law enforcement to obtain subpoenas that would allow the government to obtain information on computers that go beyond what was actually sought. En banc, the Ninth Circuit removed certain guidelines set forth in the original opinion, leaving some uncertainty about the proper breadth of a reasonable search in the context of a subpoena for computer records.
Third, Elkan spoke about the Quon case in the Supreme Court, which held that an employer can review emails sent on work computers and mobile devices issued by the employer–regardless of whether the employee has a reasonable expectation of privacy–as long as there is a non-investigatory workplace reason to do so.
Eric Mazur spoke about the exponential increase in the amount of data available and the ability of forensic experts to retrieve it.
Mark Hellerer also spoke about the increase in data and its impact on electronic discovery. In civil cases, the Sedona Conference has met annually to try to develop guidelines and best practices. In criminal cases, companies are faced with the daunting task of trying to respond to extremely broad subpoenas. Mark noted that there are certain limits on the proper scope of a grand jury’s investigative powers, and courts have at times been willing to apply Rule 17(c)’s limitation to quash–or more likely modify–unreasonably overbroad and unduly burdensome subpoenas.
Daniel Gelb talked about the statutory and constitutional limits on the reach of law enforcement with respect to electronically stored information in GPS devices, social media websites, et cetera. He noted that there is no reasonable expectation of privacy in comments posted on social media sites such as Facebook, even if directed only to a limited group of individuals such as “friends.” In addition, the government can often circumvent the need to obtain a search warrant upon a showing of probable cause by issuing a subpoena to cell phone providers who now collect GPS tracking devices.
Finally, the panelists discussed a hypothetical (based on an actual case in Washington, DC) involving a law firm partner who was prosecuted for obstruction of justice, along with his registered domestic partner and roommate, in connection with a homicide. Although the defendants were acquitted, the wife of the deceased brought a wrongful death lawsuit and has sought emails sent and received by the law firm partner on the firm’s computers.
Thursday, October 1, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Cyberspace - The Black Hole Where Ethics, Strategy, and Technology Collide," Thursday, October 1, 2009
Guest Blogger: Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers
Panel Moderator: Gerald GoldsteinPanelists: AUSA Joey Blanch, Blair Brown, Marcia Hofmann, Alexander Southwell
Gerald Goldstein grabbed the attention of the NACDL White Collar seminar telling us that each time we hit the send button on the internet a new government exhibit is created.
Blair Brown spoke about the Balco Investigation, Comprehensive Drug Testing, case and its ground breaking opinions. They answered many previously unanswered questions regarding the operation of the plain view doctrine and appropriate limits and procedures for the execution for computer search warrants. The Baseball Players Association conducted anonymous testing in order to determine whether comprehensive drug testing should be imposed on the sport. However, a search warrant issued for drug test results for specific athletes and promised to screen and limit the search of the computers to records of specific athletes through off site screening procedures. The government rejected assistance on site to produce just the records that the government sought. In fact, the case agent viewed all of the records under the theory that they were in "plain view." Three separate district judges found the government acted in an outrageous fashion, executing general warrants. Blair explained the appropriate limits and procedures that the Court held should have been followed instead.
Alexander Southwell explained the government's application of the Computer Fraud Abuse Act to the public's use of social networks in the context of the Laurie Drew case. Drew had created a fake "my space" account culminating in the suicide of a young woman distressed by the postings from the fake site. The government pressed charges for formation of a fake account, criminalizing the violation of the terms and conditions of a social network. Drew was convicted and the court entered a judgment of acquittal from which the government has taken an appeal. Therefore, the story has not been written on the sweep of the Computer Fraud Abuse Act (CFAA), 18 U.S.C. Section 1030. He explained the difficulty of the criminal law to keep up with technology and the importance for criminal defense lawyers to push back when the government attempts to apply the criminal law to current social practices.
Marcia Hofmann working for the Electronic Frontier Foundation, a techie ACLU. She encouraged defense lawyers to reach out to EFF when confronting technical issues in your criminal cases. She discussed the evolution of the CFAA covering the cases that were the vehicles that expanded its use. Her discussion opened eyes about conduct that was not traditionally addressed by the criminal law.
AUSA Joey Blanch discussed child pornography in the age of the internet. Cases are exploding and proliferating. Every section of society in every walk of life ends up with people committing these crimes because people think they are anonymous on line. Blanch told the white collar lawyers that they will have a client with a child pornography case and explained how it could arise. Importantly, she discussed the new child pornography offenses effective in October of 2009. She also discussed the circuit split on the Mona Lisa defense. One of the new crimes is the Child Pornography Enterprise offense which creates a 20 year mandatory minimum for participation in child pornography internet groups. That was just the tip of the iceberg.
Using a hypothetical containing common real life circumstances the group guided the audience through what counsel should do in tough circumstances.