Telecommunications & Electronic Media Practice Group Podcast
On October 27th, 2016, on a 3-2 party line vote, the Federal Communications Commission adopted controversial new privacy and data security rules for broadband ISPs. The FCC determined such rules were necessary because its Open Internet Order reclassified broadband providers as Title II common carriers. Prior to this reclassification, broadband ISPs operated under the generally applicable privacy and data security framework set forth by the Federal Trade Commission. However, the FCC’s new rules differ from the FTC’s framework in significant ways. Did the FCC need to adopt these new rules to protect consumers, and if so, why? Are there good reasons for these rules to differ from the FTC’s approach, which governs the rest of the Internet? What will be the practical effect of these new rules on companies, competition, and consumers? What might we see from the courts and Congress on this issue in the future? Our panelists discussed these questions and more in a lively Teleforum.
Litigation and Criminal Law Practice Group Podcast
- Dallas Harris, Policy Fellow, Public Knowledge,
- Michelle Rosenthal, Senior Corporate Counsel, T-Mobile
- Moderator: Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
The case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corporation stems from Microsoft's refusal to comply with a search warrant, which would have required Microsoft to hand over the contents of e-mails stored on a server in Ireland, but accessible from the company's U.S. headquarters. The U.S. government had applied for the warrant under Electronic Communications Privacy Act (ECPA). Reversing a lower court decision in favor of the government, the Second Circuit ruled that ECPA warrants did not have extraterritorial effect without express Congressional authorization.
Were the Second Circuit and Microsoft correct? Or was the government, which had contended that the data would be seized in the U.S rather than where it was stored, and therefore the warrant would not be exercised extraterritorially? Is the case a win for the protection of privacy? Will it help protect the relationships and agreements of U.S. entities with foreign nations? Will it be a huge burden to force the government to use the mutual legal assistance process when a provider opts to store the data at issue outside the U.S.?
Criminal Law & Procedure Practice Group Podcast
- Jeffrey M. Harris, Partner, Bancroft PLLC
- Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee
Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.
It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.
Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?
Short video featuring Paul Rosenzweig
- Howard W. Cox, Adjunct Professor, George Washington University
- Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law
Paul Rosenzweig, Professorial Lecturer in Law at the George Washington University, explains what encryption is and the legal issues that arise from its use. International & National Security Law Practice Group Podcast
In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps.
- Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law
- Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee