Authored By: Frank Gonnello, Jr.

Citation: US v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)

Employee/Employer Implicated: Law enforcement officers and civillians.

e-Lesson Learned: Whether it's "pervasive mass surveillance of the public by law enforcement agents" or just a more efficient means to an otherwise-legal end, the question of whether warrantless GPS tracking violates the Fourth Amendment rights to a suspect's privacy will be answered soon by the US Supreme Court in U.S. v. Jones.

Tweet This: Supreme Court Deciding Whether to Occupy 1984 -- is your privacy at stake?

On November 8, the United States Supreme Court heard oral arguments for its review of U.S. v. Jones (U.S. v. Maynard), the Fourth Amendment-focused case which has garnered much attention in the news over the past few weeks. The issue before the Court is whether the warrantless use of a GPS tracking device by the police violates a defendant's Fourth Amendment rights. However the implications of this decision can affect our privacy in Orwellian proportions. If you haven't yet heard, U.S. v. Jones is a tale of two District of Columbia night club owners, Antoine Jones and Lawrence Maynard, who went on trial for conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. But while neither Jones nor Maynard deleted files, destroyed hard drives, nor compromised privileged electronic communications, their case has caught the attention of our site because the trial court admitted evidence acquired by the warrantlessuse of a Global Positioning System (GPS) device to track Jones' movements continuously for a month.

Authored By: Fernando M. Pinguelo

Citation: Report on November 5, 2010 Presentation titled: Ephemeral Boundaries: Cross-Border Implications of Cloud Computing

Tweet This: Cloud Computing Front + Center in Paris --> http://ellblog.com/?p=2155

Members of the American Bar Association – International Law Section gathered on November 5, 2010 at The Westin Paris in Paris, France to actively participate in a panel discussion titled “Ephemeral Boundaries: Cross-Border Implications of Cloud Computing” sponsored by the International Litigation Committee. Cloud computing, in which electronic information is processed and stored over the Internet, poses fundamental challenges to the most revered concepts of the rule of law: Geographic basis for statutes and regulations, jurisdiction based upon physical presence, and data protection, security, and privacy laws based upon the location of tangible assets such as hardware and people. Privacy and data protection laws requiring standards of protection for transfer to certain jurisdictions may pose challenges to cloud arrangements. Re-evaluation of traditional notions of disclosure and discovery of information in the cloud may also be in the offing as the cloud alters these paradigms.

Authored By: Francis M. Giantomasi

Citation: 14-3-6777 State v. Riley , Law Div. — Mercer Cy. (Ostrer, J.S.C.) (29 pp.)

Employee/Employer Implicated: Employees who enjoy password-protected access to computerized information.

e-Lesson Learned: If your employer gives you a password to access certain data and you’re allowed to look at that data, you probably haven’t committed a crime in New Jersey if you look at that data (even if your employer has a policy saying you shouldn’t have looked it in the manner that you did).

Tweet This: Don’t pee on the side of the road! Police officers can watch you and it’s not a crime! --> http://ellblog.com/?p=2146

The next time that you get pulled over for driving under the influence, if the police officer tells you that it’s okay for you to pee on the side of the road, you might want to think twice. Someone else might be watching you, especially if there are other police officer with a password granting them access to the video of your… umm… traffic violation. Furthermore, according to the recent decision in State v. Riley, the officers doing so aren’t committing a crime, even though they might be violating their department’s internal policy. State v. Riley deals with the scope of New Jersey’s computer crime law. According to this law, if someone purposefully accesses computerized data without authorization or in excess of authorization, that person has committed a third degree crime. That seems pretty serious, but what exactly does it have to do with peeing on the side of the road?

Authored By: Fernando M. Pinguelo

Citation: An Interview with Brazilian Cyber Law Attorney Renato Opice Blum

Tweet This: Crimes Are Virtual But Damages Are Real: World Gathers In Brazil 4 The Congress On Electronic Crimes & Protection http://ellblog.com/?p=2110

Recently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection. Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home. Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.

Authored By: Jignesh J. Shah

Citation: Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008)

Employee/Employer Implicated: Supervisors/Managers

e-Lesson Learned: Simply instituting an anti-privacy policy is not enough to monitor employee communications. Employers need to ensure that its managers and supervisors are strictly enforcing the anti-privacy policy and not sending contradictory messages.

Tweet This: Beware: Failure to strictly enforce your anti-privacy policies could leave you open to lawsuits --> http://ellblog.com/?p=2095

Is having an anti-privacy policy enough to monitor employer-issued Blackberries® and laptops? According to the 9th circuit, the answer is a NO! In Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), the City of Ontario Police Department (“OPD”) had a formal policy governing city-owned computers and associated equipment that limited its use to City related business. It also warned that the users should have no expectation of privacy or confidentiality when using these resources. When the OPD issued pagers to its employees, it clarified that the policy also applied to the use of pagers. Under the OPD’s contract with its service provider, each pager was allotted 25,000 characters, after which it incurred overage charges. Quon’s supervisor informally allowed employees to pay for their overages thereby avoiding the need to audit the messages. Accordingly, employees paid their share when they exceeded the character limit and avoided an audit. Quon’s repeated overages, however, frustrated the supervisor, who pursuant to the formal policy requested an audit to determine if the exceedances were due to city related business. The audit revealed that many of the messages were personal in nature and often sexually explicit. It also revealed that at least in one instance the pagers were used to undermine a narcotics investigation.

Bridgewater, NJ (April 23, 2010) – Fernando Pinguelo, a Member of Norris McLaughlin & Marcus, P.A., appeared as a guest on Fox News Channel’s live web show, The Strategy Room, hosted by Kimberly Guilfolye. Pinguelo was interviewed about today's headlines featuring internet abuse, including the Security and Exchange Commission Office of Inspector General’s 5-year investigation that revealed SEC employees and contractors visiting porn sites and viewing sexually explicit pictures using government computers. Ms. Guilfoyle's guests today also included Richard “Bo” Dietl and Dr. Kathryn Smerling. The Strategy Room airs weekdays from 9 a.m. to 5 p.m. ET for a discussion of the day's top stories, plus a variety of hour-long shows on topics like business, health, technology, and entertainment. “Casual use of the internet in the workplace is on the rise. With up-to-the-minute Facebook statuses and Twitter ‘tweets,’ the use of company time for personal internet use has become common place. This has become so common that it is obvious employees don’t realize their actions can be tracked and saved. This new breaking story testifies to the fact that many workers don’t realize the implications of their actions online,” said Pinguelo.

Authored By: Kaiser Wahab

Employee/Employer Implicated: Businessmen and laymen alike

e-Lesson Learned: Be wary of what you agree to in your next "reply." Your email can end up sealing a binding contract.

Tweet This: The Devil is in the emails: Your inbox could be home to binding contracts! --> http://ellblog.com/?p=2076

Often I am asked if certain arrangements and deals are enforceable without a written contract. Sometimes, I am asked that question with a little bit of layman lawyering as to whether the so called “statute of frauds” (this is an ancient statute that essentially says certain classes of contracts) can cut off a contract claim. First, let me say that the law is blind, but not dumb. If there was a real arrangement oral or otherwise, rarely will a court will simply tell the plaintiff that he/she is without a paddle. This is due to several major reasons.

Authored By: Fernando M. Pinguelo and Laura J. Tyson

Citation: Stengart v. Loving Care Agency, Inc.

Employee/Employer Implicated: Employees, Employers, In-House Counsel, Outside Counsel, EVERYONE!

e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!

Tweet This: Workplace Computer-use Policy vs. Private Employee Emails? PRIVACY prevails in New Jersey --> http://ellblog.com/?p=2055

(See also: Fernando M. Pinguelo, "New Jersey Supreme Court Rules That Employees Retain Privacy and Privilege of Attorney-Client Communications Made from Work," Digital Discovery & E-Evidence, Vol. 10 No. 5, The Bureau of National Affairs, Inc. (BNA) April 15, 2010.) The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.

Authored By: Joscelyn

Citation: Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (slip opinion) (N.J. Super. Ct. L. Div. Feb. 5, 2009)

Employee/Employer Implicated: Employees and Employers Alike

e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems

Tweet This: Video eLesson: Stengart v. Loving Care - Come see what all the fuss is about with this important NJ edisc case -->http://ellblog.com/?p=1995

Blogger Joscelyn briefs us on the Stengart v. Loving Care case in this video eLesson.

Authored By: Sean McQuilkin

Citation: Clark v. State, 2009 WL 3319674 (Ind.)

Employee/Employer Implicated: Criminal Defendants

e-Lesson Learned: Don't post potentially incriminating statements or photographs on publicly available websites, especially if they are directly traceable back to you.

Tweet This: Dear Criminals, We Can Use the Internet, Too. Sincerely, Law Enforcement --> http://ellblog.com/?p=1977

All content that you put on the internet, whether you think it is private or not, is out in the open and can be accessed by anyone. Think about some of things you may have on your MySpace or Facebook pages, or may have posted on your blog or might have tweeted. Do you want your boss or the police or the courts to see them? If not, you’d be wise to avoid posting anything that could expose you to the wrath of authorities. In Clark v. State, police and prosecutors used statements on Ian Clark’s MySpace page to help convict him of first-degree murder. Granted, your dirty little secrets probably won’t end up as badly as Ian Clark’s, but why take any chances?