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Alexander Berengaut

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On June 16, 2020, the First Circuit released its opinion in United States v. Moore-Bush.  The issue presented was whether the Government’s warrantless use of a pole camera to continuously record for eight months the front of Defendants’ home, as well as their and their visitors’ comings and goings, infringed on the Defendants’ reasonable expectation of privacy in and around their home and thereby violated the Fourth Amendment.  The appeal followed the district court’s decision in June 2019 in favor of Defendants’ motions to exclude evidence obtained via the pole camera.  The Government, without obtaining a warrant, had installed a pole camera on a utility pole across the street from Defendants’ residence.  The pole camera (1) took continuous video recording for approximately eight months, (2) focused on the driveway and the front of the house, (3) had the ability to zoom in so close that it can read license plate numbers, and (4) created a digitally searchable log.

In their motions to exclude, the Defendants, relying on Katz v. United States, argued they had both a subjective and objective reasonable expectation of privacy in the movements into and around their home, and that the warrantless use of the pole camera therefore constituted an unreasonable search under the Fourth Amendment.  The Government relied on an earlier First Circuit case, United States v. Bucci, which held that there was no reasonable expectation of privacy in a person’s movements outside of and around their home—“An individual does not have an expectation of privacy in items or places he exposes to the public.”  Thus, Bucci held that use of a pole camera for eight months did not constitute a search.
Continue Reading United States v. Moore-Bush: No Reasonable Expectation of Privacy Around the Home

On March 31st, Washington Governor Jay Inslee signed into law SB 6280, a bill aimed at regulating state and local government agencies’ use of facial recognition services.  An overview of the law’s provisions can be found here.

Notably, Governor Inslee vetoed Section 10 of the bill, which aimed to establish a legislative

On March 12, 2020, Washington’s state legislature passed SB 6280, a bill that will regulate state and local government agencies’ use of facial recognition services (“FRS’s”).  The bill aims to create a legal framework by which agencies may use FRS’s to the benefit of society (for example, by assisting agencies in locating missing or deceased persons), but prohibits uses that “threaten our democratic freedoms and put our civil liberties at risk.”
Continue Reading Washington State Passes Bill Limiting Government Use of Facial Recognition

On October 3, 2019, the United States and United Kingdom signed an agreement on cross-border law enforcement demands for data from service providers (“Agreement”). The Agreement is the first bilateral agreement to be entered under the Clarifying Lawful Overseas Use of Data (CLOUD) Act. It obligates each Party to remove barriers in their domestic laws so that U.S. and U.K. national security and law enforcement agencies may obtain certain electronic data directly from Communications Service Providers (“CSPs”) located in the jurisdiction of the other Party. The Agreement will go into effect 180 days after its transmission to Congress by the Attorney General, unless Congress disapproves by joint resolution.
Continue Reading U.S. and U.K. Sign CLOUD Act Agreement

When the U.S. government conducts electronic surveillance, there are a variety of legal authorities on which it relies.  The Wiretap Act, for example, authorizes the government to conduct live telephone wiretaps in certain criminal investigations; for electronic data, the Act also permits the government to acquire electronic communications in real time.  The Stored Communications Act (“SCA”) authorizes the government to obtain stored electronic data, including the content of email messages hosted online for criminal investigations.
Continue Reading Coercive and Non-Coercive Surveillance Authorities

On Wednesday, the U.S. Department of Justice released a white paper and FAQ on the Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, which was enacted in March 2018 and creates a new framework for government access to data held by technology companies worldwide.  The paper, titled “Promoting Public Safety, Privacy, and the Rule of Law Around the World: The Purpose and Impact of the CLOUD Act,” addresses the scope and purpose of the CLOUD Act and responds to 29 frequently asked questions about the Act.
Continue Reading Department of Justice Releases White Paper on CLOUD Act

This article originally appeared in Global Data Review on March 29, 2019

Last year, the US passed legislation expanding the geographic reach of certain legal process, including search warrants, issued to technology providers seeking customer data. Under the Clarifying Lawful Overseas Use of Data (CLOUD) Act, warrants issued by US courts can force certain types of providers to disclose customer data stored anywhere in the world.

Notably, the CLOUD Act does not affect only US technology providers. The legislation covers all providers of defined technology services, so long as they are subject to US jurisdiction and in possession, custody or control of the data sought.  This article describes the CLOUD Act, addresses scenarios in which technology providers based outside the US may be subject to the legislation, and identifies mechanisms for challenging legal process issued under the Act.Continue Reading Reaching for the CLOUD

[This article also was published in Law360.]

In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to monitor, identify and stop attackers.”[1] More specifically, the ACDC would empower individuals and companies to leave their own network to ascertain the perpetrator (i.e., establish attribution), disrupt cyberattacks without damaging others’ computers, retrieve and destroy stolen files, monitor the behavior of an attacker, and utilize beaconing technology.[2] An updated, bipartisan version of the bill was introduced by Rep. Graves and Rep. Kyrsten Sinema, D-Ariz., in October 2017.[3]Continue Reading Litigation Options For Post-Cyberattack ‘Active Defense’

Covington’s Alex Berengaut and Kate Goodloe today hosted a webinar on the Clarifying Lawful Overseas Use of Data (“CLOUD”) Act.  The CLOUD Act was signed into law in March and creates a new framework for government access to data held by technology companies worldwide.  The webinar, hosted with DataGuidance, is available here.  The webinar

In a decision that defines how the Fourth Amendment applies to information collected in the digital age, the Supreme Court today held that police must use a warrant to obtain from a cell phone company records that detail the location and movements of a cell phone user.  The opinion in Carpenter v. United States limits the application of the third-party doctrine, holding that a warrant is required when an individual “has a legitimate privacy interest in records held by a third party.”

The 5-4 decision, written by Chief Justice John Roberts, emphasizes the sensitivity of cell phone location information, which the Court described as “deeply revealing” because of its “depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection.”  Given its nature, “the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection,” the Court held.
Continue Reading Supreme Court’s Carpenter Decision Requires Warrant for Cell Phone Location Data