E-Commerce Law Week, Issue 372

When the Inextricable is Inexplicable:  FCC Deregulation of Wireline Broadband Internet Access
More than a month ago, the Federal Communications Commission ("FCC") announced that it was adopting an order reclassifying wireline broadband Internet access as an "information service" under the Communications Act.  The FCC's goal was to "establish[] a minimal regulatory environment for wireline broadband Internet access services to benefit American consumers and promote innovative and efficient communications."  This deregulation of telephone carriers' broadband offerings was accompanied by a non-binding policy statement declaring the "rights" that the FCC believes consumers should enjoy when they purchase Internet broadband service.  On Friday, September 23, 2005, the FCC finally released the full text of both the broadband deregulation order and the policy statement.

FCC Releases Full Text of CALEA Order
Also on Friday, September 23, the FCC released the full text of its order to extend the scope of the Communications Assistance for Law Enforcement Act ("CALEA") to cover broadband Internet access service providers and "interconnected VoIP service" providers.  As anticipated, the FCC's CALEA order did no more than (1) declare that broadband Internet access providers and interconnected VoIP providers are subject to CALEA; and (2) require providers to come into compliance within 18 months of the effective date of the FCC's order.  The order becomes effective 30 days after publication in the Federal Register.  The FCC specifically indicated that it would release another order "in the coming months" to address other important CALEA issues, such as compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement.  The FCC's express goal in taking this two-step approach was to focus attention on compliance rather than on the scope of CALEA.

Korean Dogs (And Others) Gradually Losing Internet Anonymity
A famous New Yorker cartoon from 1993 captured the thrill of the anonymity offered by the early Internet by depicting one dog typing at a computer keyboard and saying to another:  "On the Internet, no one knows you’re a dog."  This cartoon may soon be viewed as a relic of the quaint early history of the Internet.  For while it's still easy to obtain an email account or enter chat rooms under an assumed name, true anonymity is harder and harder to maintain.  Law enforcement has gradually gotten much better at using both technical and legal mechanisms to identify cyber criminals who try to hide their digital trail, and Internet services are increasingly requiring users to provide some form of identification to protect their commercial interests.  These measures are broadly (if not universally) accepted as necessary aspects of crime fighting and e-commerce.  But South Korea recently took a step that would ban Internet anonymity even when it comes to pure speech.  On September 12, the Korean Ministry of Information and Communication announced plans to require large Internet portal operators to police web postings, blog entries and other public online communications by verifying the identity of users.  This may not be such a big deal for dogs in Korea, but it is a huge deal for Internet users and Internet Service Providers in that country.

Court Rules that ISP Immunity Under CDA Includes Erroneous Blocking of Website
The sweeping liability shield for "interactive computer services" provided by the Communications Decency Act (CDA) seems to grow broader with each passing year.  And thanks to a recent federal court decision, this year will be no exception.  On September 14, in Associated Bank-Corp. v. Earthlink, Inc. , the U.S. District Court for the Western District of Wisconsin ruled that Section 230(c)(1) of the CDA creates immunity for "any cause of action that would make interactive computer services liable for information originating from a third-party."  Specifically, the court held that when an Internet service provider’s (ISP) fraud-detecting website filter mistakenly interrupted access to a bank's legitimate website and erroneously informed web users that the site was potentially fraudulent, the ISP could not be held liable because it was an "interactive computer service" under the statute and had received the faulty information from a third-party vendor.  The decision continues the recent trend of courts' interpreting § 230(c)(1) immunity broadly -- a trend that is beneficial for ISPs, though problematic for banks and others engaged in e-commerce if they find themselves erroneously "blacklisted" by fraud prevention website filters and lose business as a result.

Killing the Google that Laid the Golden Egg?  Google Print Faces Copyright Challenge
Google, Inc.'s "Google Print Library Program" seeks to make it easier to search the entire contents of books with the Google search engine.  Google Print downloads the content of books that it gets from publishing houses and libraries to establish a searchable digital library, and then displays limited portions of copyrighted works in response to a search.  The entire book is viewable only if it is in the public domain (i.e., no longer copyright protected) or if the owner of the work gives permission.  However, Google encountered a setback on September 20 when a class action lawsuit was filed in the Southern District of New York complaining of copyright infringement.  Three authors and the Authors Guild, a trade group claiming to represent over 8,000 authors, allege that Google violated the federal Copyright Act, 17 USC § 101 et seq. , by using digital copies of copyrighted works in its Google Print program for commercial purposes without obtaining the copyright owners' consent.  The irony, however, is that while Google stands to make money from the program -- Google runs paid advertisements (in the form of "sponsored links") on the side of the results page -- the program will likely increase the market for, and value of, the copyrighted works at the same time, thus generating profits for the authors, too.

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