E-Commerce Law Week, Issue 379

CALEA, Meet "MITA," Your Neighbor to the North
In an apparent move to "keep up with the Joneses" in the fight against terror, the Canadian government on November 15 introduced the Modernization of Investigative Techniques Act ("MITA") into Parliament. Noting that other countries (including the United States) already had legislation compelling their telecommunications service providers to be "intercept capable," the Canadian Ministry for Public Safety and Emergency Preparedness declared that it was "imperative that Canada introduce its own legislation on this front."  The bill would also introduce a requirement on service providers to turn over subscriber information to Canadian national security, law enforcement and competition authorities "upon written request" from designated persons – an investigative tool not unlike the "national security letters" that U.S. law enforcement can issue to Internet service providers and financial institutions.  If the United States experience with such laws is any guide, both the intercept capability and subscriber information provisions of MITA are likely to attract their fair share of attention and controversy, as much for their impact on industry as for their privacy implications.

Another Tort Claim Bites the Dust ... Thanks to CDA Immunity
Courts have been pretty much unanimous in broadly upholding the Communications Decency Act’s (CDA) sweeping liability shield for "interactive computer services."  As a result, plaintiffs are having to get a bit more creative when bringing claims against Internet service providers (ISPs) based on their dissemination of third-party content.  For example, in a recent case involving an ISP's alleged failure to remove counterfeit user profiles from its servers after the plaintiff's repeated requests, the plaintiff sued the ISP not for "publishing" the profiles, but for breaching an “affirmative duty to remove them” after it promised it would.  Nevertheless, in Barnes v. Yahoo! Inc., the U.S. District Court for the District of Oregon granted the ISP’s motion to dismiss, holding that the plaintiff’s claim still ultimately amounted to an effort to “hold the service provider liable for failing to perform the duties of a publisher,” and that accordingly, the claim fell within the scope of immunity provided under section 230  of the CDA.

Libya Joins the Axis of Crypto
It was only three years ago that then-Undersecretary of State John Bolton termed Libya a "rogue nation" that was seeking to develop nuclear, chemical and biological weapons, and warned that it could "expect to become our target" if it continued to pursue WMD.  Libya was thus part of an exclusive, but nefarious, club:  the original Axis of Evil (Iran, Iraq, and North Korea), plus Syria and Cuba.  But my, how quickly things can change.  On November 16, in response to Libya's progress at dismantling its weapons of mass destruction programs and renouncing terrorism, the Department of Commerce, Bureau of Industry and Security, published an interim rule, effective immediately, that amends the Export Administration Regulations to authorize certain exports and re-exports to Libya.  Although significant restrictions remain, the interim rule creates a new license exception – License Exception USPL – for exports and re-exports of specified goods to “U.S. persons” working in Libya.

Meet the New Internet "Boss," Same As the Old Boss
Earlier this month, the key participants in the World Summit on the Information Society (WSIS) agreed not to alter the current governance structure for the Internet domain name system (DNS).  This agreement, which came the day before the opening of the WSIS, is a pleasant surprise for the US government, which has recently faced apparently determined opposition, even from close allies, to continuation of its lead role in DNS management.  But, on November 15, at a final Preparatory Committee meeting for the WSIS, it was announced that agreement was reached to turn the issue over for discussion to a new Internet Governance Forum (IGF) -- without disturbing the current roles of ICANN and the US government.  The creation of the IGF as a talking shop on Internet governance appears to be a strikingly similar outcome to the creation of the Working Group on Internet Governance at the end of the first phase of the WSIS.  The IGF reportedly will convene in Greece in the first half of 2006.

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