When law enforcement officials execute warrants for electronic data, they usually create a mirror image of hard drives and other electronic storage media. In recent years, it has become more common for law enforcement to keep every bit and byte they obtain from doing so. But the Second Circuit's June 17 opinion in United States v. Ganias should put a stop to this practice, thanks to the successful advocacy of Day Pitney's Stanley A. Twardy Jr., Daniel E. Wenner and John W. Cerreta.
In Ganias, federal agents obtained a search warrant to search the computers of Stavros Ganias, a CPA, for evidence regarding purported wrongdoing by an accounting client. Instead of taking Ganias's computers, the agents mirror-imaged three hard drives, which included large quantities of data outside the warrant's scope. Twenty-three months later, when the agents decided to pursue an investigation of Ganias himself, they obtained a new search warrant and used it to search those mirror images for evidence of alleged wrongdoing by Ganias. The trial court denied Ganias's suppression motion, and the evidence found on the mirror-imaged hard drives was used to convict him. Ganias appealed the denial of his pretrial suppression motion.
On appeal, Day Pitney argued that this practice effectively turned lawful search warrants into unlawful general warrants, thereby contravening the Fourth Amendment. The Second Circuit agreed, reversing the denial of suppression and vacating Ganias's conviction. The court held that even in the face of changing technology, the Fourth Amendment does not permit officials to seize and indefinitely retain electronic files outside a warrant's scope. As a result, the government will no longer be allowed to retain indefinitely mirror-image files seized outside the scope of a lawful warrant.
For a summary of the opinion, click here. To read about the importance of the opinion, click here, here, here or here. To read the opinion, click here.
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Dan Wenner and Stan Twardy authored an article, "Forfeiture and the Eighth Amendment," published in the January/February issue of GPSolo Magazine, a publication of the American Bar Association.
Steven Cash authored an analysis article, "What to Do When a Client Receives a Subpoena From Congress," published by the New York Law Journal.
On February 5, partners Dan Wenner and Jed Davis will present a webinar, "Cybersecurity Incident Report: Applying Reason And Rigor To Control Chaos," produced by PLAC (formerly the Product Liability Advisory Council).
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Jed Davis was quoted in an article, "Manager Data in Peril from Growing Cyber Threats," published by FundFire, a Financial Times news service for professionals working in the high net worth and institutional investment management industry.
Stan Twardy appeared live on the RNN-TV program "Richard French Live," a nightly news talk show.
Washington, D.C.-based counsel Steven Cash was quoted in an article, "Five Tantalizing Questions About Mueller's Investigation," published by The Hill.
Washington, D.C.-based counsel Steven Cash was quoted in an article, "Rule Change Sharpens Dem Investigations into Trump," published by The Hill.