E-Commerce Law Week, Issue 412

DHS Gives NIPP/Tuck to Cyber Security
The Department of Homeland Security on June 30 released the final version of its "National Infrastructure Protection Plan" (NIPP), which is ostensibly designed to protect the country's "Critical Infrastructures and Key Resources" (CI/KR) from "terrorist attack, natural disaster, or other type of incident." Unfortunately, the NIPP's recommendations in the area of cyber security have changed little since its final draft version of the document released last November, remaining short on substance and long on platitudes and pretty pictures. Its authors thus strike us as the Beltway counterparts of the two Miami plastic surgeons on the hit cable TV show -- more concerned with appearance than anything else. Although cyber security is mentioned nearly two hundred times and is given its own fifteen-page appendix, the NIPP spends most of these pages extolling the virtues of cooperation (among nations, within the federal system, and between the private and public sectors), R&D spending, risk assessment, protective programs, and education, while offering few details as to how the government might effectively coordinate these measures. Moreover, the NIPP purports to address the security concerns of only "the users of cyber infrastructure," while putting off the concerns of "producers and providers" of cyber infrastructure -- such as "the Information Technology and Telecommunications sectors" until the "Sector-Specific Plans" are released in six months. This reflects a curious sense of priorities, since the providers of the cyber infrastructures are one of the "critical infrastructures" meant to be the centerpiece of the NIPP.

Commerce Department Proposes Revisions to Export Controls for China
The Department of Commerce, Bureau of Industry and Security (BIS), published a proposed rule in the July 6 Federal Register amending export and reexport controls for the People's Republic of China that could significantly affect some companies exporting to the PRC. The proposed revisions are designed to implement the Commerce Department's policy of facilitating the expansion of trade between the United States and China, particularly in the high-technology sector, while ensuring that U.S. national security is fully protected. BIS will be accepting comments on these proposed revisions until November 3, 2006. The impact of the proposal will depend greatly on a company's particular business model (including whether it has military customers) as well as the nature and volume of a company's transactions with China.

UK Home Office Issues Consultation on Encryption Key Disclosure
Last month, the UK Home Office proposed to bring into force the controversial Part III of the Regulation of Investigatory Powers Act 2000 (RIPA), relating to disclosure of encryption keys. As expected, the Home Office followed up with a consultation document requesting public comment on the details of implementation of Part III. The document focuses primarily on the procedures under which government entities can obtain access to encrypted information and encryption keys, including which entities may request such information and how they may obtain authority to do so. Much of the discussion in the consultation of these issues closely tracks the language of RIPA itself. Companies that wish to provide comments in response to the RIPA Part III consultation must do so by August 30.

Paris Appeals Court Proves Slave to Fashion, Fines Google for Trademark Infringement
The Devil may wear Prada, but Google's demons likely tote Louis-Vuitton. In a ruling issued on June 28, the Paris Court of Appeals upheld last year's judgment of the Paris High Court, finding the tech giant guilty of counterfeit, unfair competition and misleading publicity in a suit brought by Vuitton's parent company, luxury goods group LVMH. Google was fined €300,000 for the misuse of the luxury leather maker's mark and ordered to reimburse Vuitton for €60,000 in court fees, in addition to the €15,000 already paid. Furthermore, according to a statement issued by Louis-Vuitton, the Appeals Court ordered Google to prohibit the unauthorized use of "marks belonging to the Louis-Vuitton company on all the extensions of its site accessible from France." This additional prohibition is significant, raising again the difficult issue of national controls over global internet content (on which the French courts have been particularly aggressive).

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