The Obama Administration is finalizing its review of a statutory electronic surveillance proposal initially developed by the FBI to address concerns regarding the widening gap between law enforcement agencies’ legal authority to intercept electronic communications and their practical ability to actually obtain the information.
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The U.S. Supreme Court has set oral argument for April 19, 2010, to review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  Although Quon concerns the scope of privacy rights afforded to public employees under the Fourth Amendment, the case also has forced private employers to renew their focus on ensuring robust and consistent enforcement of employee monitoring policies.  Unlike government employers, private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures; instead, they must comply with federal wiretap statutes and state law.  In practice, however, the “reasonable expectation of privacy” test courts apply to state common law privacy claims that govern private employers is virtually identical to the Fourth Amendment test.  Accordingly, the Supreme Court’s review of the Constitutional test likely will affect how courts view privacy claims brought against private employers.

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The U.S. Supreme Court announced Monday that it will review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  In Quon, the Ninth Circuit considered whether the Ontario, California police department and the City of Ontario violated a police officer’s privacy rights by reviewing private text messages the officer sent using a two-way pager issued by the police department.  The police officer had on several occasions exceeded the limit on the text messages provided by the department-paid plan.  Each time, the officer paid for the overage without anyone reviewing his text messages.  When the officer again exceeded the limit, his supervisor requested from the service provider and subsequently reviewed transcripts of the officer’s messages to determine if the messages were work-related.

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A former computer security consultant was sentenced Wednesday to four years in federal prison for fraud stemming from his involvement with a cyber-crime ring that used botnets to infect an estimated 250,000 computers.  He has also been ordered to pay $20,000 in restitution to companies defrauded by the scheme.  The 27 year-old California man made history last year when he became the first “bot herder” in the United States to plead guilty to wiretapping charges in connection with the use of botnets.  His guilty plea included admissions of accessing protected computers to conduct fraud and disclosing illegally intercepted electronic communications, as well as wire and bank fraud.  He faced up to 60 years in prison and $1.75 million in fines.
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