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This week we are pleased to have a guest post by Robinson+Cole Artificial Intelligence Team patent agent Daniel J. Lass.

After previously finding that the Biden White House and the FBI likely violated First Amendment free speech protections for some users of online social media platforms, the Fifth Circuit expanded its ruling to find…

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…

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

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

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.
Continue Reading U.S. Supreme Court Will Hear Mobile Phone Privacy Case