Can the government unlock your iPhone by forcing you to provide your fingerprints?

Want to keep your phone secure from the government? Better use a password and not a fingerprint.

Just two weeks ago, the United States District Court for the District of Columbia (2018 WL 3155596) ruled that the government can force you to provide your fingerprints (and other biometric features) for the purpose of unlocking your phone.

This is not the first court to reach this conclusion. The Minnesota Supreme Court (Minnesota v. Diamond, 905 N.W.2d 870 (Minn. 2018)), a Florida appellate court (Florida v. Stahl, 206 So. 3d 124 (Fla. 2016)), a Virginia trial court (Virginia v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014)), and an Illinois federal court (In re Search Warrant Application, 279 F. Supp. 3d 800 (N.D. Ill. 2017)) all reached the same outcome.

The rationale behind these decisions is simple. Under the Fifth Amendment, the government cannot force you to make a “testimonial” statement.

Continue reading Can the government unlock your iPhone by forcing you to provide your fingerprints?

SCOTUS Holds that Fourth Amendment Applies to Government Searches of Historical Cellular Phone Location Data

By Brett M. Feldman

Photo of attorney Brett Feldman
Brett M. Feldman

On June 22, the Supreme Court of the United States held that the Fourth Amendment to the U.S. Constitution applies to government searches of historical cellular phone location data. The Court’s opinion, written by Chief Justice John Roberts, is the latest to address this critical intersection of the Fourth Amendment and mobile devices.

Chief Justice Roberts, writing for a 5-4 majority, reversed a Sixth Circuit decision in the government’s favor. The majority held that individuals possess an expectation of privacy in their cell-phone location data, and that the government’s seizure of such records implicates the Fourth Amendment. In so finding, the Chief Justice noted that “a person does not surrender all Fourth Amendment protection by venturing into the public sphere,” an apparent departure from precedent permitting the government to monitor an individual’s movements, under certain circumstances, without any showing of probable cause. Specifically, Chief Justice Roberts found that the access of cell-site records contravenes an expectation that the government not going to “secretly monitor and catalogue every single movement…for a very long period of time.” Continue reading SCOTUS Holds that Fourth Amendment Applies to Government Searches of Historical Cellular Phone Location Data

The Second Circuit Loosens The Reins On Insider Trading Prosecutions

By Jovalin Dedaj

After an intervening decision by the United States Supreme Court last year and a rare rehearing of oral argument in March, the Second Circuit has affirmed the conviction of Matthew Martoma, a former portfolio manager at S.A.C. Capital Advisors. In doing so, the Second Circuit has signaled a substantial shift in insider trading law by reversing course from its 2014 decision, which made prosecuting insider trading cases more difficult. Continue reading The Second Circuit Loosens The Reins On Insider Trading Prosecutions

Back to the Future (Part II) – The Expansion of Civil Asset Forfeiture

By Michael E. Clark and Amanda L. Bassen

In yet another modification by the Department of Justice (“DOJ”) to Obama administration policies, on July 19, 2017, Attorney General Jefferson Sessions announced a policy reviving the criticized civil asset forfeiture practice that allows the DOJ to forfeit assets seized by state or local law enforcement.  The Attorney General’s order (the “Order”) authorizes the federal forfeiture of property seized under state law by state and local law enforcement agencies when alleged criminal conduct purportedly violates federal law (referred to by the DOJ as “federal adoption”).  The Order allows for the seizure of cash and other personal property from individuals suspected of crimes, but not yet convicted or charged.  Continue reading Back to the Future (Part II) – The Expansion of Civil Asset Forfeiture

Back to the Future

By Michael E. Clark and Amanda L. Bassen

On May 12, 2017, Attorney General Jeff Sessions issued a memorandum, dated May 10, 2017 (the “Sessions Memorandum”), ordering stricter charging and sentencing policies to the Department of Justice (“DOJ”) in conducting federal prosecutions.  The Sessions Memorandum announced that the DOJ must charge and pursue “the most serious, readily provable” offenses.  Attorney General Sessions defined such offenses as those carrying the greatest sentence under the United States Sentencing Guidelines (“USSG”), including sentences carrying mandatory minimum terms of incarceration.  Continue reading Back to the Future

Reining in the SEC: The Supreme Court Limits Disgorgement to a Five-Year Statute of Limitations

By Mauro M. Wolfe and Jovalin Dedaj

In yet another setback for the SEC, the Supreme Court unanimously decided that disgorgement actions, a cornerstone of SEC enforcement, are subject to a five-year statute of limitations. Continue reading Reining in the SEC: The Supreme Court Limits Disgorgement to a Five-Year Statute of Limitations

Ninth Circuit Hands Defense an Important Brady Win

Defense attorneys in the Ninth Circuit are celebrating the appellate court’s recent decision in United States v. Liew for its explication of the Brady doctrine and its implicit recognition that sometimes FBI agents are not as forthcoming as they should be.  Continue reading Ninth Circuit Hands Defense an Important Brady Win

Home-Field Advantage? Scrutinizing the Independence of the SEC’s ALJs

By Eric R. Breslin, Mauro M. Wolfe, and Jovalin Dedaj

In the last few weeks, the SEC and its administrative law judges (“ALJs”) have tested the truthfulness of the old adage, “There’s no such thing as bad publicity.”

On May 3, 2017, the United States Court of Appeals for the Tenth Circuit denied the SEC’s request to rehear a decision, in which the Court determined that the SEC’s administrative law judges were unconstitutional appointments. That decision was just another setback for the SEC in a high-stakes constitutional debate which could potentially put the issue of how the SEC appoints its ALJs before the Supreme Court. Later this month, much to the dismay of the SEC, the United States Court of Appeals for the D.C. Circuit will rehear arguments in its decision, which initially held in favor of the SEC. Continue reading Home-Field Advantage? Scrutinizing the Independence of the SEC’s ALJs

Melissa Geller Named A “New Leader of the Bar” by New Jersey Law Journal

Melissa GellerDuane Morris associate Melissa Geller has been named one of the New Jersey Law Journal‘s “New Leaders of the Bar.” With this list, the Law Journal “endeavors to identify attorneys representing the future of the legal profession in New Jersey.”

The honorees will be recognized at the Law Journal’s Professional Excellence event on June 20.