In a recent decision, the federal Court of Appeals for the Second Circuit (which covers New York, Connecticut, and Vermont) affirmed the conviction of an Italian citizen for misdemeanor computer intrusion in violation of the Computer Fraud and Abuse Act of 1986 (CFAA). The decision is noteworthy in that, among other things, the Second Circuit
Stored Communications Act
Supreme Court Orders Dismissal of Microsoft Case
As had been expected following the passage of the CLOUD Act by Congress last month, the U.S. Supreme Court remanded and ordered the dismissal of the pending United States v. Microsoft Corporation, Inc. case in a per curiam decision issued April 17, 2018.
After briefly reviewing the basis for its grant of certiorari in the…
Government and Microsoft In Agreement that Pending Case Mooted by CLOUD Act
On March 30, 2018, Solicitor General Noel J. Francisco filed a motion with the U.S. Supreme Court in United States v. Microsoft Corporation that seeks to vacate the judgment of the U.S. Court of Appeals for the Second Circuit in the case (which held in favor of Microsoft) and to remand the case with directions…
Congress Enacts CLOUD Act within Omnibus Spending Bill to Address Overseas Storage of Electronic Data, Potentially Mooting Supreme Court’s Pending Microsoft Case
On March 23, 2018, the President signed into law the Consolidated Appropriations Act of 2018 (H.R. 1625), an omnibus spending bill that includes the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act). Among other provisions, the CLOUD Act amends the Stored Communications Act of 1986 (18 U.S.C. §§ 2701-2712, hereinafter the…
Recent Supreme Judicial Court Decisions Highlight How Courts Must Embrace Technological Change
Courts are often faced with the dilemma of applying centuries, or even decades, old law to constantly evolving technological advancements. See, e.g., Transcript of Oral Argument, United States v. Microsoft, No. 17-2 (U.S. Feb. 27, 2018) (attempting to ascertain the relationship between the Stored Communications Act, a 1986 law, and modern cloud computing…
Stored Communications Act Does Not Prohibit Disclosure of Deceased’s Yahoo Account
In what appears to be a case of first impression in the Commonwealth of Massachusetts, the Supreme Judicial Court (SJC) has ruled that Yahoo may disclose the contents of a deceased’s Yahoo email account to his personal representatives and is not precluded from doing so by the Stored Communications Act (SCA).
The subscriber passed away…
Supreme Court to Hear Microsoft Emails Case
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). 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. 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.…
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Solicitor General Urges Supreme Court Review of Second Circuit Microsoft Decision
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).
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U.S. Supreme Court Will Hear Mobile Phone Privacy Case
The United States Supreme Court has just agreed to hear the case of a Detroit man who was sentenced to 116 years in prison after data from his own cellular phone was used against him at his trial for his role in a string of robberies of Radio Shacks and T-Mobile stores in metro Detroit and Ohio over a two-year period.
Timothy Ivory Carpenter, who was sentenced in 2014 in U.S. District Court, was alleged to have organized the robberies and cell phone data obtained without a warrant from his provider was presented at his trial that indicated, according to an expert witness, that he was in the vicinity of the robberies when they occurred.
On appeal, Carpenter and another defendant, both of whom were represented by the American Civil Liberties Union and other groups, argued that data revealing the locations of their cell phones supplied to investigators by wireless carriers should have been excluded from trial. They argued that because those records were created for the purpose of determining the costs of their cell phone bills, collecting that data violated constitutional protections against unreasonable searches and seizures.
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Second Circuit Denies En Banc Rehearing in Microsoft Email Case
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.
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