On September 12, 2022, the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”) published a Request for Information, seeking public comment on how to structure implementing regulations for reporting requirements under the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (“CIRCIA”). Written comments are requested on or before November 14, 2022 and may be submitted through the Federal eRulemaking Portal: http://www.regulations.gov.
In October 2019, the UK and U.S. Governments signed an agreement on cross-border law enforcement demands for data from Communication Service Providers (the “Agreement”, which we described in our earlier post here). Only now, however, have the two countries completed the procedural steps required to bring the Agreement into force. On July 21, 2022…
Last Thursday, the Eastern District of Virginia in United States v. Chatrie, No. 19-cr-00130, 2022 WL 628905, denied a motion to suppress evidence obtained from Google pursuant to a geofence search warrant. Geofence warrants are a relatively new investigative tool that target private companies’ databases of location data, compelling these companies to produce the location data of every user that was in a particular area over a particular span of time. The court invalidated the warrant for lack of particularized probable cause, but declined to suppress the evidence obtained from Google—which linked the defendant to the scene of a 2019 bank robbery—because the officers sought the warrant in good faith.
Continue Reading Federal Court Expresses Skepticism About Validity of Geofence Warrants But Declines Suppression Remedy
On December 15, 2021, the United States and Australia signed an agreement on cross-border law enforcement demands for data from service providers (“Agreement”). The Agreement is the second bilateral agreement to be entered into under the Clarifying Lawful Overseas Use of Data (CLOUD) Act, following the U.S.-UK agreement in 2019. …
Continue Reading U.S. and Australia Sign CLOUD Act Agreement
On November 1, 2021, the Supreme Court denied a petition for a writ of certiorari in American Civil Liberties Union v. United States. In its petition, the American Civil Liberties Union (ACLU) sought the Supreme Court’s review of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review’s (FISCR) decisions declining to release court records to the ACLU.
Continue Reading The Supreme Court Denies Certiorari in American Civil Liberties Union v. United States
On August 27, 2021, Illinois Governor J.B. Pritzker signed into law the Protecting Household Privacy Act (“PHPA”). The law governs how, and under what conditions, Illinois law enforcement agencies may acquire and use data from household electronic devices, commonly referred to as “smart devices” or the “internet of things.” The PHPA will go into effect…
Last week, the Ninth Circuit held in United States v. Wilson, No. 18-50440, 2021 WL 4270847, that a law enforcement officer violated a criminal defendant’s Fourth Amendment rights when he opened images attached to the defendant’s emails without a warrant, even though the images had previously been flagged as child sexual abuse materials (“CSAM”) by Google’s automated CSAM-detection software. The court based its ruling on the private search exception to the Fourth Amendment, which permits law enforcement to conduct a warrantless search only to the extent the search was previously conducted by a private party. Because no individual at Google actually opened and viewed the images flagged as CSAM, the court held that law enforcement “exceeded the scope of the antecedent private search,” thereby “exceed[ing] the limits of the private search exception.” Op. at 20-21.
Continue Reading Ninth Circuit’s Interpretation of Private Search Exception to the Fourth Amendment Contributes to “Growing Tension” Among Circuit Courts
On September 21, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an “Updated Advisory on Potential Sanctions Risks for Facilitating Ransomware Payments” (the “Updated Advisory”). The Updated Advisory updates and supersedes an earlier OFAC Advisory released on October 1, 2020, and is directed toward not only organizations victimized by ransomware attacks, but also financial institutions, cyber insurance firms, and forensic and incident-response firms that assist organizations victimized by ransomware attacks.
The Updated Advisory is largely consistent with the previous version released in October 2020, restating the U.S. government’s opposition to ransomware victims making payments to cyber threat actors and making clear OFAC’s commitment to bringing enforcement actions in connection with such payments when they constitute U.S. sanctions violations. However, the Updated Advisory adds important new guidance on “the proactive steps companies can take to mitigate [sanctions enforcement] risks,” including implementing strong cybersecurity practices before an attack; and promptly reporting a ransomware attack to, and engaging in timely and ongoing cooperation with, law enforcement or other relevant agencies. Taking these steps would constitute “mitigating factors” in any OFAC enforcement action resulting from sanctions violations in connection with ransomware payments.
In conjunction with the new Advisory, OFAC for the first time designated for sanctions a Russian cryptocurrency exchange, SUEX OTC, that OFAC alleges has been involved in facilitating numerous ransomware payments for malicious cyber actors. As a result of this designation, U.S. persons (that is, all individual U.S. citizens and permanent residents, U.S.-incorporated entities and their branch offices, and anyone physically within the United States) are now prohibited from engaging in or facilitating virtually all transactions with or involving SUEX OTC.…
On June 24, 2021, Australian parliament passed legislation establishing a framework for its enforcement agencies to access certain electronic data held by companies outside of Australia for law enforcement and national security purposes. The law paves the way for the establishment of a bilateral agreement with the United States under the U.S. Clarifying Lawful Overseas Use of Data (CLOUD) Act.
Similar to the function of the CLOUD Act, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 enables Australian enforcement authorities to compel companies covered by the statute to provide data, regardless of where the data is stored. The legislation introduces international production orders, a form of legal process for compelling real-time interception of communications or the production of stored communications and telecommunications data, which can be served directly on communications providers in foreign countries with which Australia has an agreement.
Continue Reading Australia Passes Cross-Border Data Access Law, Creates a Pathway for CLOUD Act Bilateral Agreement
Senators Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.) and Marsha Blackburn (R-Tenn.) have introduced the Lawful Access to Encrypted Data Act, a bill that would require tech companies to assist law enforcement in executing search warrants that seek encrypted data. The bill would apply to law enforcement efforts to obtain data at rest as well as data in motion. It would also apply to both criminal and national security legal process. This proposal comes in the wake of the Senate Judiciary Committee’s December 2019 hearing on encryption and lawful access to data. According to its sponsors, the purpose of the bill is to “end the use of ‘warrant-proof’ encrypted technology . . . to conceal illicit behavior.”
The bill has three main provisions:…
Continue Reading Lawful Access to Encrypted Data Act Introduced