Law Enforcement & Civil Litigation Flashcards

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1
Q

What does the Right to Financial Privacy Act of 1978 require?

A

USG cannot access or obtain copies of financial information unless the financial records are Reasonably Described, and you have one of the following:

  • Appropriate formal written request from an authorized government authority
  • Appropriate administrative subpoena or summons
  • Qualified search warrant
  • Customer authorization
  • Appropriate judicial subpoena
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2
Q

Who does the Bank Secrecy Act of 1970 (BSA) apply to, and what does it do?

A

The BSA applies not only to banks, but also to securities brokers and dealers, money services businesses, and even casinos and card clubs.

Financial institutions must keep and retain records on certain financial transactions and file Suspicious Activity Reports (SARs) to alert government agencies when they suspect or detect that a transaction may be a possible crime. Violations of these regulations are subject to fines and even imprisonment.

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3
Q

What are the record retention requirements under the Bank Secrecy Act?

A

Financial institutions are required to retain records for:
* Currency transactions > $10K
* Transportation of monetary instruments
* Purchases of currency-like instruments > $3K

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4
Q

What triggers a suspicious activity report (SAR) under the Bank Secrecy Act?

A

SARs are filed with the Department of Treasury’s Financial Crimes Enforcement Network when an entity:
* Suspects an insider involved in a crime, regardless of amount
* Detects possible crime >$5,000 and has basis for identifying suspect
* Detects possible crime >$25,000 (even if no suspect)
* Suspects money laundering in currency transactions aggregated >$5,000

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5
Q

What are the penalties for violating the Bank Secrecy Act?

A
  • Civil penalties (fines)
  • Fines for negligence or a failure to comply with regulations, information sharing requirements or due diligence requirements
  • Criminal penalties (including fines and imprisonment)
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6
Q

Access to communications

A
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7
Q

Are wiretaps legal? If not, are there exceptions?

A

Title III of the 1968 anticrime law, Omnibus Crime Control and Safe Streets Act, prohibits wiretaps of telephone calls and other aural communication made through a network without a warrant. It also extends to oral communications via the use of hidden bugs or microphones.

However, exceptions can be made if consent has been given by one of the parties involved (or both parties, depending on state law), or within the ordinary course of business. The latter is usually preceded by a message alerting the caller that the call is being recorded for quality purposes.

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8
Q

What are the basic provisions of the Electronic Communications Privacy Act (ECPA), and what happens if I violate them?

A

The ECPA extends the ban on interception to include “electronic communications.” This includes email and other communications that are not wire or oral communications, and pen registers. Although there are consent exceptions to these provisions, violation of the ECPA is a criminal offense. It includes a private right of action.

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9
Q

What is the CalECPA?

A

The California Electronic Communications Privacy Act, which states that: No California government entity can search phones and no police officer can search online accounts without:
* Permission from a judge
* Obtaining consent
* Showing it is an emergency

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10
Q

How does the ECPA regulate access to E-mails?

A

The ECPA covers email and other communications that are not wire or oral communications. However, it does not cover metadata associated with these communications.

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11
Q

How does the ECPA regulate access to Pen registers?

A

ECPA Title III (the Pen Register Act): Provides for pen register and trap and trace orders from a judge under the lenient legal standard of “relevant to an ongoing investigation” These show the incoming and outgoing calls from a single device.

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12
Q

How does the Stored Communications Act regulate access to Stored records?

A
  • Enacted as part of ECPA in 1986
  • Creates a general prohibition against the unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided
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13
Q

What are two exceptions to the Stored Communications Act?

A

The law allows for exceptions to employers for conduct authorized:
* “By the person or entity providing a wire or electronic communications service,” which is often the organization
* “By a user of that service with respect to a communication of or intended for that use,” in other words, if the employer’s reason for doing so is reasonable and work-related

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14
Q

What is the Communications Assistance to Law Enforcement Act (CALEA)?

A

Sometimes referred to as the “Digital Telephony Bill.”

CALEA lays out the duties of defined actors in the telecommunications industry to cooperate in the interception of communications for law enforcement and other needs relating to the security and safety of the public.

It requires telecommunications carriers to design their products and services to ensure they can carry out a lawful order to provide government access to communications.

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15
Q

Are Internet service providers covered by CALEA?

A

Yes. CALEA originally excluded internet services. However, in 2005, the FCC issued an order that providers of broadband internet access and VoIP services were considered telecommunications services when they interconnect with traditional telephone services. As a result, they now operate under CALEA requirements.

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16
Q

What is the reasonable expectation of privacy test?

A
  1. A person has exhibited an actual expectation of privacy
  2. The expectation is one that society is prepared to recognize as “reasonable”
17
Q

What is the Privacy Protection Act of 1980? What is the primary exception to this act?

A

It applies to government employees, and provides protection for members of the media/media organizations from gov. searches and seizures in the course of a criminal investigation.

Government officials engaged in criminal investigations are not permitted to search or seize media work products or documentary materials

An important exception is when there is probable cause to believe a reporter has committed, or is in the process of committing, a crime (unless the only crime is possession, receipt or communication of the work product itself)

18
Q

What is the Clarifying Lawful Overseas Use of Data (CLOUD) Act?

A

The CLOUD Act, enacted in March 2018, provides transborder access to communications data in criminal law enforcement investigations. There are two key elements of the CLOUD Act: 1) The provisions for U.S. access to foreign stored data and 2) the provisions to create executive agreements for foreign access to data stored in the U.S.

19
Q

When can data not be included in response to e-discovery request?

A

When done in good faith, data that is “transitory in nature, not routinely created or maintained by [d]efendants for their business purposes, and requiring of additional steps to retrieve and store,” may be considered outside the duty of preservation

20
Q

Court test to resolve conflict between retention policy and a discovery request?

A

(1) a retention policy should be reasonable considering the facts of the situation,
(2) courts may consider similar complaints against the organization and
(3) courts may evaluate whether the organization instituted the policy in bad faith.

21
Q

Media Records and Privacy Protection Act

A

Under PPA, government officials engaging in criminal investigations are not permitted to search or seize media work products or documentary materials “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.” In practice, rather than physically searching a newsroom, “the PPA effectively forces law enforcement to use subpoenas or voluntary cooperation to obtain evidence from those engaged in First Amendment activities.”

It applies only to criminal investigations, not to civil litigation.

Several states provide additional protections.

Violation can lead to penalties of a minimum of $1,000, actual damages and attorney’s fees.

One important exception is if there is probable cause to believe that a reporter has committed or is in the process of committing a crime.

22
Q

Three Steps of the e-Discovery Process

A
  1. Preservation
  2. Collection
  3. Production