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Searching: The Limits of Warrants Under ECPA - Podcast

Litigation and Criminal Law Practice Group Podcast
Jamil N. Jaffer, Jeffrey M. Harris August 09, 2016

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.?

Featuring:

  • 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

Trillions of Dollars at Stake: The Internet of Things - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Neil Chilson, Jamie Susskind, Eric Wenger, Kelly A. Donohue July 21, 2016

Cisco and other industry leaders estimate that the Internet of Things (the “IoT”) has the potential to inject trillions of dollars of value over the next decade into both the public and private sectors. It holds tremendous promise to transform and improve our lives, generating unprecedented opportunities in the way we govern and are governed, the way we do business, and the way we manage our daily activities. We stand at the cusp of an era in which everything from cars to cows can be given an Internet address and connected to the IoT network.

This rapid expansion of new technologies and capabilities brings new technical, legal, and policy challenges to the forefront. The IoT has undoubtedly caught the attention of federal policy makers, as demonstrated by the National Telecommunications and Information Administration’s (“NTIA”) recent request for comments. There are many potential touchpoints in the IoT ecosystem for regulators and policymakers, from addressing spectrum requirements to ensuring the security of systems to establishing data protection frameworks. Unfortunately, the risk of overregulating or promulgating inconsistent regulations runs high.

Our experts discussed the current and future regulatory landscape of the IoT. Is the NTIA’s proceeding a harbinger for more regulation in this nascent space? What is the correct framework to ensure the successful deployment of the IoT? Is there any role for government? What policy decisions could make or break the evolution of the IoT?

Featuring:

  • Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
  • Jamie Susskind, Legislative Counsel, Senator Deb Fischer
  • Eric Wenger, Director for Cybersecurity and Privacy Policy, Global Government Affairs, Cisco
  • Moderator: Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP

Commissioner Ajit Pai on the FCC Television Set-Top Box Proposal - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Ajit V. Pai, Alexander Okuliar July 01, 2016

In this teleforum, FCC Commissioner Ajit Pai talked about the FCC’s proposed rulemaking to transform the pay television industry and competition for the television set-top boxes sitting in millions of homes across the country. The proposed rule seeks to unbundle the sale of programming from the sale of set-top boxes. The FCC wants third party technology companies to “build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface.” The proposal has sparked tremendous debate among pay-television providers, technology companies, state and federal lawmakers, the Administration, and others. Advocates for the proposal think it could spur competition and unlock value for consumers with better and cheaper solutions for accessing video programming. Others believe the Commission’s proposal interferes with free market forces, creates more problems than it solves, and could compromise consumer privacy.

What is the FCC’s proposal? What are the implications for consumer privacy, advertising, and free market competition? Is a compromise possible? Commissioner Pai will explore these and other issues in this important teleforum, explain his dissent to the proposal, and offer us his vision for moving forward.

Featuring:

  • Hon. Ajit V. Pai, Federal Communications Commission
  • Interviewer: Alexander P. Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP

Net Neutrality Survives D.C. Circuit Challenge: U.S. Telecom Association v. FCC - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Brett A. Shumate, Adam J. White June 20, 2016

On Wednesday, June 14, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s controversial reclassification of broadband internet service as a telecommunications service subject to common carrier regulation under Title II of the Communications Act. The case, which many observers believe may ultimately end up before the United States Supreme Court, touches on major questions about the Communications Act, as well as First Amendment issues and larger administrative law controversies, including Chevron deference. Our experts discussed all of these angles and the outlook for the case going forward.

Featuring:

  • Brett A. Shumate, Partner, Wiley Rein LLP
  • Adam J. White, Research Fellow, Hoover Institution

Should the government be able to read your emails?

Short Video on Private Servers and the 4th Amendment in the Information Age featuring Amy Peikoff
Amy Peikoff February 10, 2016

Southwestern Law School’s Visiting Associate Professor Amy Peikoff explains the Third Party Doctrine of the Supreme Court’s Fourth Amendment Doctrine. Under the Third Party Doctrine, the government does not need a warrant in order to obtain information entrusted to a third party, such as a bank, cell phone company, or email server. Thus, individuals who utilize their personal server for email may effectively keep their emails private while those using a commercial email server such as gmail do not have the same privacy.