Category Archives: Fourth Amendment

CLE COURSE: DIGITAL FORENSICS FOR ATTORNEYS 102

Just because a person installs some software on the neighbor’s computer does not make them a digital forensics expert. And when your client is looking at 30 years in prison, this is not the person you want to retain as the digital forensics expert in your next case.

Digital Forensics

There is a tremendous knowledge gap in our legal system today when it comes to matters involving digital evidence. In our years of experience in working with attorneys as digital forensics experts, common questions arise again and again: What do I ask for? Is the evidence relevant? What does this item in the forensic report mean? What should I ask the other expert? What should I ask you? Can you explain that to a jury?[1]

Digital forensics is a highly technical field. The expert you select must have the proper investigative and technical background – in addition to being able to understand their place in the legal system. If you need help selecting a digital forensics expert for your next case join Lars Daniel as he covers how to select the best expert, discovery & usage of digital evidence and challenging digital evidence. To access this course please click here: Digital Forensics for Attorneys 102.

Lars also discusses:

  • Computer experts vs. forensic experts
  • Key points to selecting an expert
  • Forensic & non-forensic certifications
  • Forensic tools
  • The expectations of the digital expert
  • The Brad Cooper murder trial
  • Spotting the problem expert
  • United States v. Bryan James Gardner
  • Browser caching
  • Challenging text messages
  • Macrium images

Lars Daniel has numerous digital forensics certifications. The co-author of the book Digital Forensics for Legal Professionals, Lars has attended over 250 hours of forensic training and has worked on over 500 cases involving murder, child pornography, terrorism, rape, kidnapping, intellectual property, fraud, wrongful death, employee wrongdoing and large scale e-discovery collections.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in New York and around the country. For more information about CLE in California please click the following link: NY CLE.

[1] Excerpt from Digital Forensics for Legal Professionals: Understanding Digital Evidence From the Warrant to the Courtroom

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New CLE Courses Added!!!

At Attorney Credits, we recognize that we live in a fast paced, ever-changing world.  Every new day brings new inventions, new fads and emerging trends in the practice of law – from utilizing cloud technology to drone law.

New CLE Courses:

  • A Practical Approach to 1031 Exchanges
  • A Sneak Peek at the Possible New Rules of Professional Conduct
  • Appellate Oral Arguments: Nuts and Bolts and “Do’s and Don’ts”
  • But I Only Had Two Beers!!
  • Civility and Professionalism: Gender and Culture Bias in the Legal Profession
  • Counseling Your Business Clients on Trademarks
  • Crafting a Simple and Effective Closing Argument
  • Dealing with Cognitive Bias in Trial from Voir Dire to Deliberations
  • Don’t Give Up 5 Minutes Before the Miracle
  • Estate Planning 101
  • Evidence: Advocacy and Artistry in the Courtroom
  • From Harry Ellis to Trump: The Ethics of Federal Disqualification Motions
  • How to Negotiate with the IRS in Collections and For Audits
  • Prosecuting Trademark Applications
  • Representing Disabled Veterans Before the Department of Veterans Affairs
  • The Phone Knows All: Cell Phones, CDR Reports and GPS Tracking for Attorneys

For that reason, we are constantly adding new CLE courses to keep up with new changes and developments in the law.  Our goal is to keep you as current as possible so you can best serve your clients!  For more information about Illinois CLE please click here: IL CLE.

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CLE Course: Issue Spotting in Criminal Law Cases

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There is a great deal at risk when a person is accused of a crime. Your client’s life and liberty are at stake, and there is a lot of information you need to be able to recognize to ensure that your client’s rights are properly protected. Whether you are a civil attorney that needs a refresher on criminal law or you are an attorney that’s just starting out in criminal practice, this CLE program will cover the basics of criminal defense and issue spotting in criminal cases.

Common issues in criminal law courses:

  • Whether the questioning of the defendant was legal
  • Did the police have a legal reason to stop the defendant
  • Whether the police unlawfully seized evidence

In this Criminal Law 101 course, attorney Paul Ghanouni mainly discusses constitutional issues, police-citizen encounters, statements to police and search & seizure law. Attorneys that take this course will be able to: recognize key issues in criminal case, discuss common criminal law issues, identify key facts and conduct research on criminal topics. While this course does discuss key criminal topics & issues, it does not discuss the specific elements of criminal offenses because this information is specific to each jurisdiction. To access the course please click here: Criminal Law: Issue Spotting 101.

Further issues addressed in this CLE course:[1]

  • The exclusionary rule
  • The right to counsel
  • The right to silence
  • Voluntary statements
  • Searches of persons & motor vehicles
  • The plain view doctrine
  • The fruit of the poisonous tree doctrine
  • Key practice points

Paul Ghanouni is a criminal defense attorney based in Woodstock, Georgia. After beginning his career at a small firm, he founded his own law practice in 2007 and now specializes in teen and young adult defense. He is a regular presenter on legal issues before legal and community groups. Outside of his practice he is active with the Blue Ridge Bar Association, having served as vice president and president. He is a member of the Woodstock Optimist Club.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

[1] Case law discussed in this CLE course includes: Terry v. Ohio, 392 U.S. 1 (1968), Beck v. Ohio, 379 U.S. 89 (1964), Moran v. Burbine, 475 U.S. 412 (1986), Davis v. United States, 512 U.S. 452 (1994), Miller v. Fenton, 474 U.S. 104 (1985), Mincey v. Arizona, 437 U.S. 385, Lynumn v. Illinois, 372 U.S. 528 (1963), Chimel v. California, 395 U.S. 752 (1969), United States v. Sharpe, 470 U.S. 675 (1985), Arizona v. Gant, 556 US 332 (2009), South Dakota v. Opperman, 428 U.S. 364 (1976), Pennsylvania v. Labron, 518 U.S. 938 (1996) and Horton v. California, 496 U.S. 128 (1990).

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CLE Course on the Importance of Mobile Phone Forensics in Litigation

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For many of us, the only time we’re not using your smartphone is when we are taking a shower – and I have to admit to checking my fantasy football scores in the shower. If you are like me, your smartphone is a text messaging device and a phone… and it’s also an Internet browser, a GPS device and the easiest way to send emails and check our stocks. Other people use their smartphone to post content to Facebook, Snapchat, Twitter, Vine, Instagram, Youtube and other social media and content sharing websites. We now live our lives through our phones, tablets and other mobile devices.

Mobile Phone Forensics

From a business and legal standpoint, the preservation and collection of electronically stored information (ESI) is central in today’s litigation landscape and is only complicated by smartphones and other mobile devices. Emails, presentations, spreadsheets, memos and even pictures & video can all be potentially responsive data sources. The challenge with this type of electronically stored information (ESI) is that it is often stored in a myriad of systems and mobile devices, and each system has its own preservation and collection nuances.

In this course, attorney and global eDiscovery & cyber forensics expert Paul Connolly describes the current landscape of mobile information collection and preservation and answers the vexing question of why attorneys so often overlook mobile data in the context of eDiscovery. Paul mainly discusses why collecting the data can be ethically challenging, expensive & potentially awkward, and he also provides some proactive policy and protocol ideas to bring clarity to your practice and electronic discovery of mobile devices.  To access the course please click here: Our Phones, Ourselves: The Importance of Mobile Phone Forensics in Litigation.

Additional topics covered in this CLE course include:

  • The prevalence of discoverable data on mobile devices
  • How preservation of employee text messages & other mobile data is frequently overlooked or botched
  • The practical issues faced when collecting data
  • Ethical complications
  • Privacy questions
  • Company BYOD (Bring Your Own Device) policies
  • Shadow BYOD policies

Paul K. Connolly is an attorney and Global E-Discovery & Cyber Forensics Expert with Duff and Phelps in Santa Monica, California. He has extensive case and workflow management responsibilities and handles internal investigations and “front page” enforcement actions by federal securities and antitrust regulators. Paul often works closely with internal counsel and compliance departments at international banks.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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CLE Course on How the Supreme Court Analyzes Evolving Technology

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Almost 100 years ago, the Supreme Court was forced to decide on the admissibility of evidence from a groundbreaking new technology – the systolic blood pressure test. At the time, the evidence from the systolic blood pressure test – or lie detector test – was held to be inadmissible because it was not “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Advances in sciences yield new, novel and high technology, much of which has significant legal ramifications. Unfortunately, technology evolves much faster than the laws can keep up and courts are forced to apply old legal doctrines to novel situations in our new digital world.

Fast-forward almost a century later and the Supreme Court now routinely decides major cases involving technology, reasonable expectations of privacy and the Fourth Amendment. In 2001, the Supreme Court aptly noted in Kyllo v. United States that technology has the power to erode Fourth Amendment privacy – and that seems to be exactly what’s happened in the ensuing years. Today, technological advances have given law enforcement powerful new tools at their disposal — stingrays, drones, thermal imaging devices, facial recognition software — to conduct surveillance and investigate criminal activity. Yet courts have been slow to keep pace with these technological changes and they have been split all over the map on what constitutes a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.

To learn more about how the Supreme Court of the United States (SCOTUS) has analyzed evolving technologies, please join attorney and forensic expert Herbert Joe as he details the court’s analysis on emerging technologies – from the lie detector test to digital technologies. Mr. Joe presents and discusses Frye vs. U.S. (polygraph machine), Katz vs. U.S. (recording devices), Kyllo vs. U.S. (thermal imaging devices), U.S. vs. Jones (GPS tracking devices), U.S. vs. Wurie and Riley vs. California (smartphone searches).

To access this course please click here: From Katz to Riley: How SCOTUS Analyzes Evolving Technology. Herbert Joe is a forensic scientist with 4 degrees, Graduate Faculty (Law) at the University of Phoenix and a Registered Patent Attorney. As managing partner of Yonovitz & Joe, L.L.P., his firm has been involved in 1000s of cases involving forensic audio/acoustic/voice/video evidence for the past 27 years. He is also a Certified Mediator, licensed to practice law in Texas and Oklahoma, a Registered Patent Attorney with the United States Patent & Trademark Office, and a Member of the College of the State Bar of Texas. He has testified in state and Federal courts in civil and criminal cases throughout the U.S. and overseas as an expert witness in forensic audio, acoustic, voice and video evidence, as well as an expert in patent law in patent infringement cases. Clients include all levels of state and Federal governmental entities, law firms throughout the world, Fortune 100 companies, Public Defender’s Office throughout the U.S.

This CLE course is currently offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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Digital Citizenship in Schools: From Policy to Practice

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The schools of today are very different than the schools of our youth. Students today are faced with cyberbullying, sexting, Facebook and all the novel problems that our new digital world has created over the last decade. Schools and school districts must know how to address and respond to these new issues created by digital technologies so they can best help students and avoid potential liability.

In an era of sexting, cyberbullying, and Facebook, school administrators walk a fine line in trying to provide a safe school environment and at the same time, trying not to infringe on student first amendment rights. – Gretchen Shipley

If you would like to learn more about emerging legal issues in schools created by technology please join Gretchen Shipley as she uses a hypothetical fact pattern to discuss these emerging issues. The main topics covered by Mrs. Shipley include search & seizure, mandatory reporting of abuse & neglect, sexting, social networking, teacher-student online communication, teachers’ cyber conduct, student discipline for online speech, bring your own device & equal access, cyberbullying, student privacy rights and potential breaches of privacy law.  To access the course please click here: Digital Citizenship in Schools: From Policy to Practice.

Further issues discussed include:

  • eMatters
  • Klump v. Nazareth
  • Sexting by students
  • Freedom of association
  • “Fitness to teach”
  • The “related to school activity” standard
  • The substantial disruption standard
  • S. v. Blue Mountain
  • FERPA
  • CIPA
  • J.C. v. Beverly Hills
  • The Fourth Amendment
  • COPPA
  • GeoLocation & iPad tracking
  • School video cameras
  • Pictures on school websites
  • Data mining by technology vendors
  • Social media monitoring (GeoListening)
  • Device search & seizure

Gretchen Shipley is a partner in the San Diego office of Fagen Friedman & Fulfrost and co-chair of the firm’s eMatters Practice Group. A respected legal leader in education law and technology, Mrs. Shipley advises school districts and delivers workshops to students, employees and district leaders nationwide on the promotion of cyber-citizenship in the school community and the implications of cyber-misconduct in the classroom and workplace. She has also collaborated with the Association of California School Administrators to co-produce the popular “Logged On” seminars, created to offer guidance on employee and student issues that stem from embedding technology into public education.

This CLE course on digital citizenship in schools is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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Juror Privacy … Or a Fair Trial?

By Jason Castillo, Director of Legal Education

There is a major conflict brewing in our American legal system.  The conflict pits the electronic privacy rights of jurors against the Sixth Amendment and the right to a fair trial for criminal defendants.  And last week a California Appeals Court decision bolstered the Sixth Amendment – while possibly undermining the SCA and juror privacy.[1] 

In Juror Number One v. Superior Court (Royster) a Third District Court of Appeal panel ruled that a juror who wrote on his Facebook page about the criminal trial must consent to having his online postings turned over to the trial judge for review to determine whether his misconduct was prejudicial against the defendant.  Juror No. 1 argued unsuccessfully that the compelled consent to the release of his Facbook postings violated his Fourth & Fifth Amendment rights, as well as the Stored Communications Act (SCA).  The SCA is a federal law that limits government access to online communications.

Many commentators believe that the Third Circuit’s decision is the first of its kind.  In reaching the decision the Third District reasoned that the SCA only protects third parties like Facebook from being compelled to disclose information such as Juror No. 1’s postings.  Therefore, Juror No. 1 has no protections under the statute. Many privacy advocates claim that this ruling violates the spirit of the SCA – a statute Congress enacted “to fill a gap in the protections afforded by the Fourth Amendment.”[2]

“With smartphones and mobile devices now ever present in our society, jurors around the country simply can’t resist Google mapping the crime scene or updating their Twitter and Facebook accounts with information about the trial.”

However, it does seem as though many jurors have a problem resisting the urge to tweet, blog and Facebok facts and opinions about their case.[3]  Frustrated judges around the country have watched numerous trials compromised by juror’s electronic misconduct.  These judges have turned tried a few different actions to try and preserve defendants Sixth Amendment rights – including contempt findings, confiscating smartphones and enhanced jury instructions.

The Third District’s ruling may present California judges with a new opportunity during jury instructions to warn jurors not to post to social media websites during trial, and that if they do their writings may be subject to inquiry.  But will this be enough?  New York recently amended its jury instructions to advise against electronic communications in criminal cases, but these provisions do not necessarily apply in civil cases.[4]

“… the extent of Juror Number One‟s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising.” – Justice Hall

The court dismissed the Fourth Amendment claims because Juror No. 1 had no “legitimate expectation of privacy in the records.”  While many privacy advocates feel this ruling unfairly intrudes into a juror’s privacy and the SCA, the defendant’s Sixth Amendment right to a fair trial trumps these minor instrusions.[5]  Further, if Juror No. 1 did not want the government delving into his electronic affairs he should have listened to the jury instructions – and stayed off Facebook!

I previously blogged about this case back in April (See: Should One Facebook Post Merit a New Trial?)


[1] The appeals court concluded that the juror’s “privacy rights do not trump [the defendant’s] right to a fair trial free from juror misconduct.”

[2] Juror Number One v. Superior Court (Royster).

[3] See Commonwealth v. Werner, 2012 Mass. App. LEXIS 183 (Ct. App. Mass 2012) (new trial denied without waiting for Facebook to respond to subpoena); People v. Wilson, 93 AD 3d 483 (1st Dept. 2012) (juror made Facebook postings advising she was on a jury and her friends made “foolish” replies relating to trials in general but juror said she was not affected by these comments and decided the case impartially).

[4] See CPL §270.40, Rev’d Jury Admonitions, (Rev’d May 5, 2009) (revised to include warning regarding use of electronic devices).

[5] Further, you would have to be a fool to think you have privacy in a social network in today’s day and age.  There is almost no reasonable expectation of privacy for things you post online.

Should One Facebook Post Merit a New Trial?

By Jason Castillo, Director of Legal Education

Do you think that this Facebook post violates a criminal defendant’s Constitutional right to a fair trial?  And should the juror’s Facebook postings protected under the federal Stored Communications Act (SCA)?[1]  An appellate court in California has been asked to decide these novel electronic issues.[2]

In June, 2010, shortly after the jury convicted the parties involved in a brutal gang beating in Sacramento, a juror became concerned that the jury foreman’s Facebook postings may have violated the defendant’s right to a fair trial.  She reported this conduct to the defendant’s counsel who began the process of obtaining the electronic records.  Since the defense attorneys didn’t have legal access to the juror’s Facebook page, they were forced to subpoena Facebook for the records.

Facebook then moved to quash the subpoenas and to be relieved from the court orders.  They argued that the federal Stored Communications Act (SCA) prohibited the social network from divulging the contents of petitioner’s communications.  Facebook did state, however, that the jury foreman has the discretion to turn over the electronic postings to the attorneys of the criminal defendants.  Of course the jury foreman –  A.R. – has refused to turn over the posts.

“The case involves the significant and novel issue of whether a trial court’s power to investigate a claim of juror misconduct includes the power to compel an accused juror to forfeit the protections the juror would otherwise enjoy under the federal Stored Communications Act.”

The attorney representing A.R. claims that the subpoena is a violation of his client’s First and Fourth Amendment rights to free speech and privacy.  However, A.R.’s Constitutionally protected speech and privacy rights must be weighed against a criminal defendant’s Sixth Amendment right to an impartial jury and fair trial.  Attorneys for the defendants believe that A.R.’s Facebook posts will prove that the juror was either biased or improperly contacted by outside third parties.

Should this rather innocuous electronic post rise to the level of ordering a new trial?  While it is true that A.R. did violate the court’s instruction to not share or communicate information about the trial, this does not seem like the type of conduct that would merit a new trial.[3]  The jury foreman –  A.R. – merely stated that the evidence was boring.

Now, if instead A.R. had posted on Facebook that he had done hours of outside research on Google about the crime scene and defendant, this would start encroaching into the defendant’s right to an ‘impartial’ trial. However, in the case at hand, I doubt the Court of Appeal will order the defendant to turn over the posts and the question of whether the juror’s Facebook postings are protected under the federal Stored Communications Act (SCA) will have to wait for another day.  There are two cases on point in other states where the courts issued an order compelling consent under the SCA for the disclosure of Facebook postings and text messages as part of civil discovery.[4]

What do you think?  Should the Court of Appeal order a new trial for the defendants?


[1]  Stored Communications Act (SCA) 18 U.S.C. § 2701 et seq.

[2] The case is Juror Number One (A.R.) v. Honorable Michael P. Kenny Judge of the Sacramento County Superior Court.

[3] See CALCRIM No. 101

[4] See Romano v. Steelcase Inc. (2010) 907 N.Y.S.2d 650 and Flagg v. City of Detroit (E.D.Mich. 2008) 252 F.R.D. 346.

What’s the Difference Between Email and a Pager?

Since I have a science background, the intersection of law and technology has really fascinated me over the last few years (I attended UCSD and studied cellular and molecular biology as an undergraduate). We all knew that the technology was coming and that it was going to revolutionize our lives, we just didn’t know how it was going to affect us. Aside from people now building farms on Facebook and kids being unable to put the phone down – there are many changes in society that have resonated into the law. While many attorneys may be slow to accept and to adjust to these new technological changes in society they can no longer be ignored and our courts are crafting new precedents every day.

Of late, one crucial question that has yet to be fully resolved centers on cell phones, text messaging, an employee’s right to privacy, and the employer’s right to monitor. A reader posed this question on the Attorney Credit’s LinkedIn Discussion post on Friday after he read an earlier blog post on the same subject. The question posed:

Is it a violation of privacy for an employer to read your personal texts?

My answer – like many legal answers “it depends.”

This has turned out to be an extremely complicated question and the answer depends on many specific factors and what part of the country you are located in. There has been a split amongst the courts in this country and we are currently awaiting guidance on the matter from the SCOTUS.

A few weeks ago the Supreme Court heard oral arguments in City of Ontario, Calif. v. Quon, a case that will clear up some of the confusion. However, its application may be practically limited because of its specific set of facts. At the appellate lever, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

In Quon, the general issue is whether an employee has a reasonable expectation of privacy in their cell phone text messages. It is a topic I blogged about back in December, and although it does seem like a crucial case on the subject, the holding may be more limited in practice. First, a public – not private – employer was involved in the case. Second, the phone was owned by the police department, but Quon paid for overages when he exceeded the text message limit set by the police and he was off-duty at the time the text messages were sent. Lastly, Quon’s police sergeant subpoenaed Arch Wireless for the records – something a private employer would have a tough time accomplishing. At the appellate level, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

This has been a hot button topic in the last few months and a quick search will reveal that many blogs have covered the topic. As reported by Law.com, it is not clear which direction the Supreme Court will go on this issue and there are many facts that must be dealt with. What is an employee’s “reasonable expectation of privacy” in their electronic communications? Are texts the same as email or a phone call? Can an employer completely disclaim an employee’s right to privacy in all digital communications by inserting such language in the AUP (Acceptable Use Policy)?

Of course, I enjoy blogging about this topic and it highlights the tricky issues we all face in our new electronic world. One of the main arguments that Quon’s lawyer presented was that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office. However, is communicating by text the same as sending a letter through the U.S. mail or an email through an ISP?[1]

These issues even invoke the Constitution and Deputy Solicitor General Neal Katyal cautioned the Court about generalizing Fourth Amendment rules in this area. As he aptly point out the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs. However, I find this rationale to be flawed for one main reason – the law will never catch up to technology. Technology moves way too fast for the law to ever keep up at the same pace.

One last issue to ponder … is the Supreme Court even equipped to properly decide these issues? During oral arguments, Chief Justice John Roberts asked what the difference was between an email and a pager. And this body will continue to craft the law in this area for years to come …. let’s hope they have some tech-minded clerks!

[1] This is a very unsettled area of law. In Rehberg v Paulk, the 11th Circuit recently held that a party has no privacy rights to email because email is “information you have turned over to a third party.”

ESI in the Criminal Context


In the arena of civil litigation, the rules governing the preservation, collection, production, and use of electronically stored information (ESI) have been developing rapidly over the last few years. Spurred in part by the Sedona Principles which were a precursor to the 2006 amendments of the Federal Rules of Civil Procedure in 2006, litigators at least have some guidance to deal with some of the complications presented by the voluminous amounts of electronic evidence.

On the other hand, criminal defense lawyers and prosecutors are pretty far behind their civil counterparts in dealing with these new electronic issues and have no formal procedural rules to shed light on the proper conduct concerning ESI. However, in what will be a leading Fourth Amendment decision, Chief Judge Kozinski explains why a search on a computer is much different than a search of a briefcase or file cabinet.[1] In a case of the Information Age meets the Constitution, the difficult challenges presented by the nature of ESI create problems in the context of search warrants as well.

In particular, the Fourth Amendments prohibition on unreasonable search and seizure contrasts with the vastness of information stored on a computer. What if a forensics expert is investigating a hard drive for evidence of a drug ring, but comes across computer porn? These are the new problems that plague prosecutors as the Fourth Amendment’s requires particularity in identifying ‘‘the place to be searched and the . . . things to be seized,’’ but vast amounts of information can be stored on a digital devices.

And courts have had a hard time consistently applying the Fourth Amendment’s ‘‘particularity’’ standard to ESI. While some courts have imposed ex ante restrictions on the government, requiring that warrants for ESI searches focus specifically on particular files or types of electronic evidence, other courts have permitted more generalized descriptions of computer equipment to be searched and have generally given the government no limits when examining and using data on the theory that all data in a computer is in ‘‘plain view.’’

Comprehensive Drug Testing involved Major League Baseball players caught up in the BALCO steroid scandal. Major League Baseball hired Comprehensive Drug Testing (CDT) to test the urine of a segment of professional baseball players for illegal performance-enhancing drugs. In 2004, federal agents executed search warrants at CDT, an independent medical testing laboratory, seeking information about 10 baseball players who had allegedly obtained steroids from BALCO laboratories.

During the search, the government made copies of the BALCO’s computer directories, which included drug testing data for more than 100 other baseball players, as well athletes in other sports. On the basis of the information in these BALCO computer directories, the government obtained additional search warrants relating to the approximately 100 other baseball players who were listed in the database as having tested positive for steroids. In an en banc decision by the Ninth Circuit Chief Judge Kozinski flatly rejects the government’s electronic version of the “plain view” doctrine. Under the government’s view, agents should be allowed to rummage through computer files at will because the data is in “plain view.”

Kozinski also mandated that the government must be honest and the government must limit computer searches to data identified in the warrant. This means that officers can’t search for the “hash files” of known child porn while looking for urine testing records. Kozinski further stated that a person segregating the seized data has to be either a government techie who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party, like a special master.

The reasoning of this case should serve as some further guidance until criminal codes are re-written to deal with ESI much as the civil codes have been updated.

[1] See United States v. Comprehensive Drug Testing.