In an obscure case that could have broad implications, a judge in the Eastern District of Virginia sentenced the Danish CEO of two overseas technology companies to time served and a fine of $500,000 for the advertisement and sale of a mobile application capable of surreptitiously monitoring communications and other information on a mobile device. A Department of Justice press release touted the result as “the first-ever criminal conviction concerning the advertisement and sale of…

Recently, Louisa Marion and I analyzed the Supreme Court’s far-reaching decision in Riley v. California, 573 U.S. __ (2014), and its implications going forward. In Riley, Chief Justice Roberts concluded that today’s cell phones (which the Court called “minicomputers”) are fundamentally different than physical containers: their storage capacity is virtually unlimited; they contain a broad variety of information (photographs, texts, personal contacts, financial information, geolocation information, and search history, among others); they have long…

In an unexpectedly sweeping opinion, a nearly united Supreme Court today recognized the fourth amendment’s protection for digital privacy. Chief Justice Roberts’ opinion in Riley v. California is grounded on the Founders’ abhorrence of general warrants and unparticularized intrusions into our private lives. It highlights the pervasiveness of cell-phone (“minicomputer”) use, as well as the volume and breadth of data – current and historical – accessible through such devices. Continuing the sea-change started with Justice…

In conjunction with the 2014 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search and seizure of ESI, warrantless searches of mobile phones, warrantless use of GPS devices, cell-site tracking, electronic searches…

The University of Maryland announced on February 19th that it is the most recent university to fall victim to a data breach. According to the University’s President, UM was the target of a “sophisticated” computer attack that exposed the personally identifiable information (PII) of over 300,000 individuals. Specifically, the hack targeted records that relate to the University’s student identification (ID) system and thus compromised the PII of various students and staff who had been issued a University…

In the Summer issue of the American Bar Association’s Criminal Justice Magazine, I write about the Ninth Circuit’s watershed en banc ruling in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), that border agents must have “reasonable suspicion” before conducting forensic searches of laptops at the US border. The decision will likely present significant challenges in application, and particularly in determining what constitutes a forensic search and when suspicions are reasonable. Nevertheless,…

A finding of bad faith is not required for a remedial jury instruction when the government’s negligent destruction of evidence significantly prejudices a defendant, the Ninth Circuit ruled earlier this month in its panel decision in United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.). However, bad faith—or a showing that the exculpatory nature of spoliated evidence was apparent to the government—remains necessary for complete dismissal under Arizona v. Youngblood, 488…