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On April 30, 2018, a Massachusetts physician was convicted of a criminal violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as well as one count of obstruction of a criminal health care investigation, in a Massachusetts federal court. The convictions relate to the purported sharing of confidential patient information by the…

Last month, the Federal Aviation Administration (FAA) received recommendations regarding remote identification of drones in a report from the unmanned aircraft  Identification and Tracking (UAS ID) Aviation Rulemaking Committee (ARC). One of the topics at issue: whether we need remote identification (ID) of all drones in the national airspace. Beyond the FAA, the Department of…

In an order issued on October 16, 2017, the U.S. Supreme Court granted certiorari in United States v. Microsoft Corporation, a case with potentially far-reaching implications for the privacy of electronic data maintained by technology companies across the globe.

The case, which Robinson+Cole has previously discussed here, here, and here, arises from a warrant obtained by the Department of Justice (DOJ) under the Stored Communications Act (SCA).[1] The SCA was enacted in 1986 to protect the privacy of electronic communications, including by extending privacy protections to electronic records analogous to those afforded under the Fourth Amendment to the U.S. Constitution.[2] In relevant part, the SCA requires a governmental entity in most instances to secure a warrant in accordance with the Federal Rules of Criminal Procedure to compel disclosure of electronic communications stored by a service provider.[3]…
Continue Reading Supreme Court to Hear Microsoft Emails Case

The U.S. Supreme Court recently indicated that it will consider the federal government’s petition for a writ of certiorari in United States v. Microsoft Corp. at its conference scheduled for October 6, 2017. United States v. Microsoft is a “cutting edge” case that concerns the ability of law enforcement to obtain electronic documents stored abroad…

This morning, the U.S. Department of Justice (DOJ) announced an initiative aimed at “examining and strengthening forensic science.” Presumably, the initiative will impact how the DOJ approaches digital forensic evidence in criminal prosecutions.

Deputy Attorney General Rod J. Rosenstein made the announcement at the International Association for Identification’s (IAI) conference in Atlanta, Georgia. The IAI…

On June 23, 2017, the Office of the Solicitor General (OSG) filed a petition for a writ of certiorari with the United States Supreme Court requesting reversal of a 2016 decision in which the U.S. Court of Appeals for the Second Circuit quashed a warrant obtained by the Department of Justice (DOJ) under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails.

In its July, 2016 decision in United States v. Microsoft Corp., a Second Circuit panel unanimously held that the DOJ’s attempt to procure the contents of the emails – which allegedly pertained to illegal drug trafficking – via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored was located in Ireland. The Second Circuit subsequently denied a request for an en banc rehearing in January, 2017 (see previous analysis of that denial here).
Continue Reading Solicitor General Urges Supreme Court Review of Second Circuit Microsoft Decision

While drone delivery services are certainly on the agendas of large retailers like Amazon, inmates in jails across the U.S. are already using drones to receive their own aerial contraband shipments. Through a Freedom of Information Act (FOIA) request, the Department of Justice (DOJ) revealed that there have been many attempts over the past five years to transport contraband to prisoners in the U.S. from mobile phones, to drugs, and even pornography. State facilities have also reported similar incidents over the years. Drone expert and drone legislation advocate, Troy Rule, of Arizona State University, says, “Civilian drones are becoming inexpensive, easy to operate and powerful. A growing number of criminals seem to be recognizing their potential value as tools for bad deeds.” And the problem is that current anti-drone technologies fail to protect prisons against these drone deliveries. While smuggling contraband into prison through any method violates federal law, no statute currently prohibits drones from flying near correctional facilities (aside from some newly implemented local laws) – this is yet another loophole in the legislation layout of drone laws.
Continue Reading DOJ Reports on Drones Flying Contraband to Prisons

On February 22, 2017, the Department of Justice (DOJ) and Department of Education (DOE) withdrew their May 13, 2016 “Dear Colleague” letter that provided guidance on steps to protect transgender students under Title IX of the Educational Amendments of 1972 (Title IX) as well as the Family Educational Rights and Privacy Act (FERPA). Although the letter did not add any requirements to the law, it did provide guidance to covered entities as to how agencies would interpret and enforce the law. The decision by DOJ and DOE to withdraw the letter has clouded the issue and left its application to transgender students in question.
Continue Reading DOE and DOJ Withdrawl of “Dear Colleague” Letter Leaves FERPA’s Guidance Unresolved

On January 24, 2017, the U.S. Court of Appeals for the Second Circuit denied the Department of Justice’s request for an en banc rehearing in In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp. a/k/a Microsoft Corp. v. United States (No. 14-2985). The denial leaves in place a controversial decision by a three judge panel that quashed a warrant obtained by the DOJ under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails. The majority panel unanimously held on July 14, 2016 that the DOJ’s attempt to procure the contents of the emails via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored is located in Ireland.
Continue Reading Second Circuit Denies En Banc Rehearing in Microsoft Email Case

This year has been a busy year for education law in the area of data privacy. Educational institutions continue to be a rich target for hackers. Additionally, there were some important developments in the interpretation of Family Educational Rights and Privacy Act (FERPA) and the Telephone Consumer Protection Act (TCPA) as it applies to educational institutions.

  • In December, DeVry University Settled with the FTC for $100 million over allegations that it misled prospective students with ads that promised higher employment success and income upon graduation.
  • Also in December, UMass Amherst settled with the Office for Civil Rights (OCR) for $650,000 for HIPAA violations related to a malware infection that led to the release of names, addresses, Social Security numbers, dates of birth, health insurance information, diagnoses, and procedure codes.
  • In November, a hacker gained access to 1,213 records of applicants to the University of Wisconsin Law School.
  • On September 14, 2016, the Department of Education (DOE) issued a “Dear Colleague Letter” providing guidance on the application of FERPA to the disclosure of student medical records in the context of litigation.

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Continue Reading Top Ten Education Developments, Breaches, and Settlements of 2016