2018 should prove to be a particularly interesting year on the subject of government access to private electronic records, as 2017 has served as an interesting prelude to what’s ahead:

  • On November 29, the Supreme Court heard oral argument in Carpenter v. United States. As I discussed in an analysis in June, the case addresses an individual’s expectation of privacy in his or her historical cellphone location records, but raises broader issues of privacy and law enforcement under the decades-old Stored Communication Act. The Supreme Court’s decision is expected in the first half of 2018.
  • On February 27, the Supreme Court will hear oral argument in U.S. v. Microsoft, in which it will look at whether a company must comply with a warrant for electronic information that has been stored overseas.
  • In late November, the high-stakes litigation between Uber and Waymo was thrown into chaos shortly before it was to go to trial when it came to light that Uber had been utilizing the ephemeral messaging service Wickr for communications among employees. This dispute is turning a new eye on the issue of ephemeral messaging and its relationship to document preservation and secure communications. Judge Alsup’s rulings are sure to set the table for a period of legal developments in this area.

Putting it Into Practice: Companies should follow developments in these cases, as they could affect their practices regarding securing and storing their data in the future.