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.
On September 25, DC-based counsel Steven Cash will be a featured speaker at the National Forum on the Foreign Agents Registration Act (FARA), an event presented by the American Conference Institute and held in Washington, DC.
Steven Cash moderated a panel discussion hosted by Culper Connect, an alumni association of former United States Government public servants from the U.S. Intelligence Community.
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Steven Cash authored an article, "Why Immediate Public Release of Mueller Report Would Be Bad for National Security, Politics," published by The Hill.
Steven Cash was quoted in an article, "Trump Remarks Deepen Distrust with Intelligence Community," published by The Hill.
Jed Davis was quoted in an article, "Rise Of Nation-State Hacks Doesn't Give Cos. A Free Pass," published by Law360.
DC counsel Steven Cash was quoted in an article, "Five Takeaways from Barr's New Powers in 'Spying' Probe," published by The Hill.
Former federal prosecutor Stan Twardy was featured on the RNN-TV program "Richard French Live," a nightly news talk show.
Stan Twardy was quoted in an article, "5 Things to Know About John Durham—Barr's Pick to Probe Root of Russia Investigation," published by the Connecticut Law Tribune.