E-Commerce Law Week, Issue 385

A Breach Notification Law for the Keystone State
'Twas three nights before Christmas, and all through the land, not a statehouse was stirring ... except in Harrisburg, Pennsylvania.  On December 22, Gov. Edward Rendell approved the "Breach of Personal Information Notification Act" (S.B. 712), thus making Pennsylvania the newest member of the state breach notification law club.  As with the vast majority of state notification laws, the Pennsylvania bill is modeled on California’s archetypal 2002 breach notification law (S.B. 1386).  It applies to state agencies and individuals or businesses "doing business" in the state that "maintain[], store[], or manage[] computerized data that includes personal information."  The law becomes effective on June 20, 2006.  With Pennsylvania becoming the 22nd state to pass a breach notification law, the pressure will build on Congress when it returns later this month to pass a federal law with a strong preemption provision.  But whether that pressure will be enough to force the issue onto the front burner -- when Congress will also have to deal with such controversial matters as NSA's warrantless wiretapping of US persons and the Alito confirmation hearings -- remains to be seen.  In the meantime, businesses would be well advised to have in place a plan for determining where, when, how, and to whom they must provide notifications in the event of an information security breach.

Out with the Old, In with the New:  Our Top Ten Predictions for 2006
Lists are big this time of year.  Santa's already checked his twice.  Movie and book reviewers have named the "10 Best of 2005."  And many of us are already working on forgetting our lists of New Year's resolutions.  In that spirit, here are our top ten predictions for e-commerce, security, and privacy issues of 2006.

10. Content Security and Digital Rights Management.  The fight over copyright infringement and peer-to-peer file sharing will rage on, with a huge battle emerging over video content.

9.   Online Gambling.  Despite the Justice Department's insistence that all Internet gambling is already illegal, offshore Internet gambling will continue to flourish absent an amendment to the US Wire Act to cover non-sports betting such as Internet poker.

8.   Offshoring and Information Security/Privacy.  Since this is an election year, expect Congress to follow the states' lead by restricting the offshoring of federal government contract work.

7.   Patent Abuse.  The Supreme Court will reverse the Federal Circuit’s ruling in the eBay v. MercExchange case and give district courts more discretion in deciding whether to issue injunctions in patent infringement cases.

6.   Datamining.  Congress will institute modest regulation of data brokers who sell their services, but will not be able to agree on rules restricting government agencies' use of datamining.

5.   Data Retention in Europe.  The European Union will implement a data retention directive.

4.   Spyware and Malware.  Congress will consider, but not pass, legislation requiring companies of a certain size to institute reasonable security measures and giving the Federal Trade Commission explicit enforcement authority.

3.   Communications Assistance for Law Enforcement Act (CALEA).  The DC Circuit will find some fault with the Federal Communications Commission's decision to extend CALEA to broadband access providers, but will not give a similar reprieve to interconnected VoIP providers.

2.   Data Security Breach Notification.  Congress will pass a federal breach notification law with a strong preemption provision.   

And, the number one e-commerce, privacy, and security issue of 2006 will be:

1.   Warrantless  Domestic Surveillance.  After much "sturm" and a little "drang" about the President's violation of the Foreign Intelligence Surveillance Act, Congress will end up retroactively condoning the President's domestic wiretap program, while instituting some modest restrictions and oversight requirements.

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