Obtaining Social Media Information. Kelly Meehan, Assistant Attorney General Nick Wanka, Assistant Attorney General

Transcription

1 Obtaining Social Media Information Kelly Meehan, Assistant Attorney General Nick Wanka, Assistant Attorney General

2 Minnesota Law Minn. Stat

3 Minn. Stat Search Warrants Relating To Electronic Communication Services and Remote Computing Devices Subd. 1(a) The terms "electronic communication services" and "remote computing services" shall be construed in accordance with United States Code, title 18, sections 2701 to 2711, as amended through March 1, This section does not apply to corporations that do not provide those services to the general public. Subd. 1(c) "Applicant" means a peace officer as defined in section , to whom a search warrant is issued pursuant to this chapter. Subd. 1(e) A "foreign corporation" is considered to be doing business in Minnesota if it makes a contract or engages in a terms of service agreement with a resident of Minnesota to be performed in whole or in part by either party in Minnesota. The making of the contract or terms of service agreement is considered to be the agreement of the foreign corporation that any administrative subpoena or search warrant properly served on it has the same legal force and effect as if served personally on it within the state of Minnesota. Subd. 1(f) "Properly served" means that a search warrant has been delivered by hand, or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to a person or entity listed in section 5.25 or covered by this statute

4 Minn. Stat Search Warrants Relating To Electronic Communication Services and Remote Computing Devices Subd. 2(a) The following provisions shall apply to any search warrant issued under this chapter allowing a search for records that are in the actual or constructive possession of a foreign corporation that provides electronic communication services or remote computing services to the general public, where those records would reveal the identity of the customers using those services; data stored by, or on behalf of, the customer; the customer's usage of those services; the recipient or destination of communications sent to or from those customers; or the content of those communications. Subd. 2(b) When properly served with a search warrant issued by the Minnesota court, a foreign corporation subject to this section shall provide to the applicant all records sought pursuant to that warrant within eight business days of receipt, including those records maintained or located outside this state.

5 Minn. Stat Search Warrants Relating To Electronic Communication Services and Remote Computing Devices Subd. 2(c) Where the applicant makes a showing and the judge finds that failure to produce records within less than eight business days would cause an adverse result, the warrant may require production of records within less than eight business days. A court may reasonably extend the time required for production of the records upon finding that the foreign corporation has shown good cause for that extension and that an extension of time would not cause an adverse result. Subd. 2(d) A foreign corporation seeking to quash the warrant must seek relief from the court that issued the warrant within the time required for production of records under this section. The issuing court shall hear and decide that motion no later than eight court days after the motion is filed. Subd. 2(e) The foreign corporation shall verify the authenticity of records that it produces by providing a written affidavit or statement to that effect. But see comment to Minn. R. Evid. 902: Uniform Rule 902(11) adds business records to those writings that are self-authenticating. The Committee considered Rule 902(11) and recommends against adopting it. Under present Minnesota law, the authentication requirement for business records is found in Rule 803(6) (..."all as shown by the testimony of the custodian or other qualified witness,..."). The extensive discovery available in both civil and criminal procedures provides a vehicle for resolving authentication issues before trial. The authentication requirement is generally waived. With respect to the minority of cases in which the parties cannot resolve the issue prior to trial, the committee took the view that a party should have the right to insist upon the proof required by Rule 803(6). For these reasons the committee decided not to recommend that business records be added to the list of self-authenticating documents, and recommends that Uniform Rule 902(11) not be adopted. Cell phone records and Crawford issues: United States v. Yeley Davis, 632 F.3d 673, 678 (10th Cir.2011) (cell phone records non-testimonial); United States v. Banks, 93 F. Supp. 3d 1237, 1248 (D. Kan. 2015) (cell phone records non-testimonial).

6 Federal Law 18 U.S.C Stored Communications Act (SCA)

7 18 U.S.C Statutory Definitions Subd. 2: the term remote computing service means the provision to the public of computer storage or processing services by means of an electronic communications system. Subd. 3: the term court of competent jurisdiction includes (B) a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants Subd. 4: the term governmental entity means a department or agency of the United States or any State or political subdivision thereof. Contents vs. Records: Keep in mind this distinction, because it matters for not only notice requirements but for whether you ll need a warrant or can get the info from an admin subpoena.

8 18 U.S.C Required Disclosure of Customer Communications or Records subd. f Preservation Letters (1)In general. A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. (2)Period of retention. Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

9 18 U.S.C Required Disclosure of Customer Communications or Records Subd. (c) Records concerning electronic communication service or remote computing service. (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-- (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2).

10 18 U.S.C Required Disclosure of Customer Communications or Records Subd. C (continued) - Records (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-- (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

11 18 U.S.C Required Disclosure of Customer Communications or Records Subd. 3(a) Contents of wire or electronic communications in electronic storage. A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

12 18 U.S.C Required Disclosure of Customer Communications or Records Subd. (b) Contents of wire or electronic communications in a remote computing service. (1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-- (A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-- (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title.

13 18 U.S.C Required Disclosure of Customer Communications or Records Do I need to give the subscriber (Defendant) notice under federal law when obtaining contents of communications? Warrant? No. See discussion in United States v. Scully, 108 F. Supp. 3d 59, 84 (E.D.N.Y. 2015); In re U.S. for Historical Cell Site Data, 724 F.3d 600, 606 n. 7 (5th Cir. 2013); In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 287 (4th Cir. 2013) Subpoena? Plain language of Federal Law says yes, if you can even do this under State law to begin with.

14 18 U.S.C Required Disclosure of Customer Communications or Records Federal Law Notice requirements: Subpoena for records? Not required. Warrant? Not required. Subpoena for contents? Required, but may violate the Fourth Amendment and/or Minnesota Constitution Art. 1, 10 anyway, so don t do this. United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010) (reasonable expectation of privacy in contents of own ); But see United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (noting that individuals may not enjoy such an expectation of privacy in transmissions over the Internet or that have already arrived at the recipient ); United States v. Lustyik, 57 F.Supp.3d 213, 223 (S.D.N.Y.2014) ( A person has no expectation of privacy in another person's account. ). If an recipient voluntarily discloses the defendant s sent to law enforcement, there is no 4 th amendment violation. Remedy for violation of Federal law? Suppression of evidence is not a remedy for alleged violations of the [SCA]. United States v. Stegemann, 40 F.Supp.3d 249, 271 (N.D.N.Y.2014) The SCA provides that its remedies and sanctions which include administrative discipline and a civil suit against parties other than the United States, but not suppression are the only judicial remedies and sanctions for non-constitutional violations of the SCA. United States v. Zodhiates, No. 14-CR-175-A, 2016 WL , at *4 (W.D.N.Y. Jan. 20, 2016) Assumes violation of federal law is merely statutory and not constitutional.

15 18 U.S.C Required Disclosure of Customer Communications or Records (d) Requirements for court order.--a court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. Grounds for provider to quash do not allow provider to quash on behalf of subscriber s expectation of privacy

16 Other relevant provisions in 18 U.S.C through Voluntary disclosure of customer communications or records by a provider Costs associated with production Delayed Notice Up to 90 days Requirements for delayed notice listed in subd. A(2) Upon expiration, required to provide notice to subscriber as described in subd.

17 How to Obtain Social Media Information

18 Administrative Subpoena Minn. Stat County Attorney; Administrative Subpoenas Minn. Stat Attorney General; Administrative Subpoenas

19 Search Warrant

20 Considerations: Obtaining Social Media Information 1. What Information Can You Obtain and How 2. Account Preservation 3. Grounds for Issuance 4. Emergencies 5. Delayed Disclosure 6. Other Considerations 7. Resources

21 What Information Can You Obtain and How Facebook - Subpoena Basic Subscriber Records Including: Name Length of Service Credit Card Information Address(es) Recent Login/Logout IP Address(s) Facebook Search Warrant Content Stored Contents, Including: Messages Photos Videos Timeline Posts Location Information

22 What Information Can You Obtain Other Facebook Data: and How Photos Metadata Searches Check-ins

23 What Information Can You Obtain and How Instagram - Subpoena Basic Subscriber Information Including: Subscriber Name Account Creation Date Address Signup IP address Instagram Search Warrant Stored Contents Including: Messages Photos Videos Comments Location Information

24 What Information Can You Obtain Snapchat - Subpoena Snapchat Subscriber Information: Including: Snapchat username address Phone number Snapchat account creation date Timestamp and IP address of account logins and logouts and How Snapchat Search Warrant Snapchat Content Including: Log of previous snaps Message Content (*Limited) (Snap Memories)

25 Account Preservation Minn. Stat. 626A.29 Backup Preservation 18 U.S.C. 2703(f) Requirement to Preserve Evidence *Request as soon as identified as a relevant source to the criminal investigation: User deletion/deactivation User changes overwriting Data retention within social media platform *Make request of social media provider for nondisclosure of preservation request to owner of account until investigation is closed

26 Grounds for Issuance Minnesota Federal A court order for disclosure under subdivision 2 or 3 must issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry. Minn. Stat. 626A.28 A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. 18 USCA 2703 (d)

27 Grounds for Issuance The affidavit must establish a nexus... Between the item to be seized and criminal behavior. Warden v. Hayden, 387 U.S. 294, 307 (1967). There must also be a nexus between the contraband and the place to be searched. United States v. Tellez, 217 F.3d 547, 550 (8 th Cir. 2000).

28 Grounds for Issuance The requisite nexus between a particular location and contraband is determined by the nature of the crime and the reasonable, logical likelihood of finding useful evidence. United States v. Etheridge, 165 F.3d 655, 657 (8 th Cir. 1999).

29 Case Law United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) Dissemination of social media postings and information to the public is not protected by the 4 th Amendment (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Where Facebook privacy settings allow viewership of postings by friends, the government may access through a cooperating witness, who is a friend, without violating the 4 th Amendment

30 Case Law United States v. Tsarnaev, 53 F. Supp. 3d 450, 462 (D. Mass. 2014) Agent asserted in affidavit to search warrant: [b]ased on [his] training and experience, [he was] familiar with how people, including those who commit crimes, use accounts and social media to plan, discuss, or commit their crimes Satisfied nexus requirement for probable cause

31 Case Law United States v. Page, No. 15-CR-284 (DWF/SER), 2016 WL (D. Minn. Feb. 4, 2016). Agent s training familiarity with child molester s use of grooming techniques Affidavit relayed victims use of Facebook to communicate with Page to discuss Page giving them money for clothes or schooling

32 Case Law United States v. Wheeler, No. 12-CR-0138-WJM, 2013 WL (D. Colo. Jan. 16, 2013). Defendant argues no probable cause to search Friends list, pages liked or became a fan of, who he may have poked or items sold on Facebook s Marketplace. Comments posted on Facebook repeatedly referred to defendant s religious operatives and followers and instructed them to kill cops and commit a massacre in a preschool; and state that nobody in america knows who I have been associating with out side america, we are ready...

33 Case Law United States v. Will, No. 5:15-CR-6, 2015 WL (N.D.W. Va. June 19, 2015) Victim statement that defendant used social media Search warrant for Facebook account revealed deleted account no preservation previously requested Subsequent search warrant for defendant s hard drives on his computers revealed child pornography Argument by defendant probable cause only supported search for social media on or after April 9, 2014 Court found plain view exception, because the designation or labeling of files can easily be manipulated to hide their substance (citing United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010)).

34 Case Law United States v. Martin, No. CR PHX-DGC, 2015 WL (D. Ariz. July 21, 2015). Defendant argues search warrants for social media were stale Agent s affidavit explained electronic communications on Facebook and Twitter are stored on servers and can remain there indefinitely and noted that preservation requests were made Preservation request for Heikkila s Facebook account sent some 4 ½ months after the alleged assault, but served within a few weeks of receiving Martin s Facebook information and served search warrant within 90 day period Reasonable basis information would likely be obtained by search warrant; not stale

35 Emergencies 18 U.S.C. 2702(b)8 & 2702(c)(4) Service provider in good faith believes an emergency involving danger of death or serious physical injury

36 Delayed Disclosure Minn. Stat. 626A.30 Delayed Notice 18 U.S.C Delay of Notification For California (in consideration of Cal. Penal Code (a)) Include in the Order: NON-DISCLOSURE ORDER: It is further ordered that internet content provider shall not notify any person (including the subscriber or customer to which the materials relate) of the existence of this order for 90 days in that such a disclosure could give the subscriber an opportunity to destroy evidence, notify confederates, or flee or continue their flight from prosecution.

37 Other Considerations Minnesota Rules of Criminal Procedure Rule (c) The prosecutor may request that a complaint, indictment, application, arrest warrant, search warrant, supporting documents, and any order granting the request not be filed, or be filed under seal.

38 Rule cont d. (d) An order must be issued granting the request in whole or in part if, the court finds reasonable grounds exist to believe that: (2) in the case of a search warrant application, making the document public may cause the search or a related search to be unsuccessful, create a substantial risk of injury to an innocent person, or severely hamper an ongoing investigation.

39 Resources IACP (International Association of Chiefs of Police) Center for Social Media Enforcement Investigative Guides»Publications»Glossary

40 Resources SEARCH (Internet Service Provider) List

41 Resources: Google Search Facebook: Instagram: Snapchat: Resources» Snapchat Law Enforcement Guide

42 Twitter: Resources Google Search YouTube / Google Inc.: /legalprocess/

43 California ECPA and its effect on Minnesota

44 Brief History of ECPA Legislation proposed by California State Senators Mark Leno (D-San Francisco) and Joel Anderson (R-Alpine). Sponsored by Electronic Frontier Foundation, ACLU, and California Newspapers Publishers Association. Initial opposition from law enforcement, but after changes made the California Police Chiefs Association, California District Attorneys Association, and California State Sheriff s Association removed opposition on September 1, Supported by tech companies. Signed into law by California Gov. Jerry Brown on October 8, Came into effect in January 2016 Cal. Penal Code 1546

45 Questions regarding ECPA What does it cover? When does it apply? What happens with Minnesota law and the ECPA? Does anything change for me when I want social media information held by a California tech company?

46 General ECPA Statutory Definitions Cal. Penal Code 1546 (i) Government entity means a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof. The definite article the is a word of limitation that indicates a reference to a specific object. State v. Hohenwald, 815 N.W.2d 823, 830 (Minn. 2012). California legislature did not use the phrase a state or political subdivision

47 General ECPA Statutory Definitions (c) Electronic communication means the transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. (d) Electronic communication information means any information about an electronic communication or the use of an electronic communication service, including, but not limited to, the contents, sender, recipients, format, or location of the sender or recipients at any point during the communication, the time or date the communication was created, sent, or received, or any information pertaining to any individual or device participating in the communication, including, but not limited to, an IP address. Electronic communication information does not include subscriber information as defined in this chapter. (k) Specific consent means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity. (l) Subscriber information means the name, street address, telephone number, address, or similar contact information provided by the subscriber to the provider to establish or maintain an account or communication channel, a subscriber or account number or identifier, the length of service, and the types of services used by a user of or subscriber to a service provider.

48 Cal. Penal Code Production of or access to electronic communication information; prohibited acts; circumstances allowing production or access; warrant requirements; voluntary disclosures (b) A government entity may compel the production of or access to electronic communication information from a service provider, or compel the production of or access to electronic device information from any person or entity other than the authorized possessor of the device only under the following circumstances: (1) Pursuant to a warrant. (2) Pursuant to a wiretap order (3) Pursuant to an order for electronic reader records (4) Pursuant to a subpoena issued pursuant to existing state law, provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense, and compelling the production of or access to the information via the subpoena is not otherwise prohibited by state or federal law. Nothing in this paragraph shall be construed to expand any authority under state law to compel the production of or access to electronic information.

49 Cal. Penal Code Production of or access to electronic communication information; prohibited acts; circumstances allowing production or access; warrant requirements; voluntary disclosures (d) Any warrant for electronic information shall comply with the following: (1) The warrant shall describe with particularity the information to be seized by specifying the time periods covered and, as appropriate and reasonable, the target individuals or accounts, the applications or services covered, and the types of information sought. (2) The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and not subject to further review, use, or disclosure without a court order. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law. (3) The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.

50 Cal. Penal Code Production of or access to electronic communication information; prohibited acts; circumstances allowing production or access; warrant requirements; voluntary disclosures (a)(3) Access electronic device information by means of physical interaction or electronic communication with the electronic device. This section does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity. (f) A service provider may voluntarily disclose electronic communication information or subscriber information when that disclosure is not otherwise prohibited by state or federal law. Good luck with this

51 Cal. Penal Code Execution of Warrant (a) Except as otherwise provided in this section, any government entity that executes a warrant, or obtains electronic information in an emergency pursuant to Section , shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective, the identified targets of the warrant or emergency request, a notice that informs the recipient that information about the recipient has been compelled or requested, and states with reasonable specificity the nature of the government investigation under which the information is sought. The notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in the case of an emergency, within three days after obtaining the electronic information. (b)(1) When a warrant is sought or electronic information is obtained in an emergency under Section , the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time that the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days. (3) Upon expiration of the period of delay of the notification, the government entity shall serve upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably calculated to be effective as specified by the court issuing the order authorizing delayed notification, the identified targets of the warrant, a document that includes the information described in subdivision (a), a copy of all electronic information obtained or a summary of that information, including, at a minimum, the number and types of records disclosed, the date and time when the earliest and latest records were created, and a statement of the grounds for the court's determination to grant a delay in notifying the individual.

52 Cal. Penal Code Suppression of electronic information; enforcement of provisions of chapter; immunity (c) An individual whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution. Wait what does that say what I think it says? Yes, it does. The target, once he receives notice of the warrant but before he is charged, can petition the issuing court to void the warrant. There is also a separate provision requiring the State to provide a copy of the warrant to the target.

53 Minnesota law and ECPA So, what does this mean for us in Minnesota? As of right now, it means hassles Explaining to outside counsel the applicability, or lack thereof, of ECPA to search warrant issued by Minnesota court. Dealing with tech companies who refuse to honor warrant if it doesn t comply with certain ECPA requirements, like a date range. Would you rather have to sue them to force compliance? Dealing with less cooperative tech companies, i.e. Reddit.

54 Minnesota and the ECPA If this largely doesn t apply to Minnesota law right now, why should I care? Because it s (probably) coming Similar law already proposed in Congress H.R Privacy Act More tech company opposition to cooperating with law enforcement. See In Matter of Warrant to Search a Certain Account Controlled & Maintained by Microsoft Corp., F.3d, No , 2016 WL (2d Cir. July 14, 2016) 2 nd Circuit said warrant issued under 18 U.S.C cannot compel American companies to produce data stored in servers outside U.S. Microsoft is the entity that moved to quash this warrant in the district court.

55 Practical Tips Send preservation letter with non-disclosure provision prior to serving warrant Include any non-disclosure provision in your admin subpoena Review requirements to seal your search warrant, if you want to do this Ramsey county has new policy, among at least some judges, of only honoring a request to seal for 90 days. Must re-apply for another order to seal if you want to extend this time period. Include date ranges in your warrant, unless you are willing to fight these companies in court Do not just request everything in the account Subject to overbreadth challenge and hesitancy from California companies based on ECPA Do not domesticate your warrant in California No service by California law enforcement agencies. Otherwise ECPA applies Play nice in the sand box We don t want to have to start personally serving California companies with warrants because they refuse to accept service Requirement in Minnesota law for records to be produced in 8 business days, but most companies will take longer (Minn. Stat subd. 2(b)) gentle reminders of this requirement may be necessary from time to time Less than 8 business days upon showing that adverse result would otherwise occur (Minn. Stat subd. 2(c)).

56 Questions or Concerns? Kelly Meehan Nick Wanka