E-Commerce Law Week, Issue 403

FCC Announces Second CALEA Order For Internet Access and VoIP Providers
On May 3, the Federal Communications Commission finally announced the adoption of a Second Report and Order in the proceeding concerning the applicability of the Communications Assistance for Law Enforcement Act (CALEA) to broadband Internet Access and Voice over Internet Protocol (VoIP) providers. The Order is a significant win for law enforcement and a major set back for industry. Most notably, the FCC ruled that carriers cannot recover their CALEA implementation costs through individual wiretap charges. It also affirmed the initial 18-month compliance deadline for broadband Internet access and "interconnected" VoIP services, which began running November 14, 2005, and imposed interim compliance reporting requirements. Finally, it opened the door for FCC enforcement of CALEA's requirements, even though CALEA appears to have given federal courts that responsibility. Only the press release and Commissioner statements regarding the Second Report and Order were released on May 3; the full text of the Order is not yet available.

When it Rains, it Pours: State Data Security Legislation Keeps on Coming
April showers bring May flowers . . . and a continuing torrent of data security legislation from state legislatures. With the recent signing of data security legislation by the governors of Arizona, Colorado, Kansas, and Maine, the number of states that have enacted data breach notification legislation stood at 28. But this probably does not yet represent the high water mark for state legislative action on this matter, since similar bills are pending in at least 17 other states. So unless one of the federal bills pending in Congress starts to move quickly, and is passed with a strong preemption provision, this spring's deluge of state breach notification bills could seem like a drop in the bucket.

Under Guise of Regulating Spam, China Cracks Down on ISPs and Corporate Email Services
Reducing the flow of spam emanating from China would seem to be a good idea.  After all, China reportedly contributes 22.3% of global spam volume, second only to the United States. But a recent edict issued by China's Ministry of Information Industry (MII) ostensibly to combat spam in fact goes much further and imposes burdens on both Internet Service Providers (ISPs) and, apparently, any entity that runs its own email server in China. "The Measures for the Administration of E-mail Service on the Internet," which took effect on March 30 of this year, subject any entities providing email services in China to a series of potentially costly new registration, reporting, data retention, and security and confidentiality requirements, as well as to prohibitions on the transmission of certain content. ISPs, telecommunication companies, and businesses with their own email servers should pay close attention to the Measures, which give the Chinese government one more tool in its continuing campaign to control the flow of information online.

Feds Try To Quell Growing Challenges to NSA Warrantless Surveillance Program
It's been a few months since the New York Times broke the Pulitzer Prize-winning story of the National Security Agency's (NSA) warrantless wiretapping program in the United States. And now, somewhat belatedly, challenges to that program seem to be gaining a little traction in both the courts and Congress. The Fourth Circuit recently returned a case involving a convicted terrorist to the district court to determine whether the government possesses undisclosed NSA intercepts material to the defendant's trial. Sen. Chuck Schumer (D-NY) introduced a bill that would provide standing for persons whose communications are "chilled" by the NSA program. And Sen. Arlen Specter (R-PA), Chairman of the Senate Judiciary Committee, has threatened to introduce legislation cutting off funding for the program unless the Administration provides more concrete information about it to Congress. But the Administration seems intent on stifling these challenges before they can gain any steam. Most recently, the government announced that it intends to intervene in the lawsuit by the Electronic Frontier Foundation (EFF) against AT&T, which EFF alleges cooperated with NSA's surveillance, and assert the military and state secrets privilege in order to have the case dismissed.  It remains to be seen whether any of these challenges makes any headway. But the temperature is clearly rising in Washington, even if only a few degrees right now.

Questions and comments about E-Commerce Law Week are always welcome. Please send your feedback to Sally Albertazzie.