E-Commerce Law Week, Issue 361

Mr. Baker "Goes" to Washington
We are honored to pass along the news that President George W. Bush has nominated Stewart Baker to head up policymaking at the Department of Homeland Security.  Yes -- the Steptoe & Johnson partner who has for years brought you headlines like "NIST Says 'DES All Folks!'" and "Is your company on the patch?" and "Has the VAT Lady Sung?" – who has served as General Counsel for the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction and as General Counsel for the National Security Agency – has now been tapped to be DHS Secretary Michael Chertoff's go-to guy on matters of DHS policy.  He will oversee a central policy office that will bring together the DHS "international affairs staff, a significant and new strategic planning capability, DHS-wide policy development assets, a senior policy advisor focused on refugee asylum policies, and enhanced private sector liaison resources.  Collectively, the Policy Directorate will strengthen the Department's ability to develop and plan vital policies."

Hague Choice of Court Convention Finally Adopted
The long-awaited – and often-doubted – conclusion of negotiations for a multilateral treaty to improve the enforceability of civil judgments has finally arrived after 13 years of negotiations.  The Hague Conference on Private International Law reached agreement on June 30 on the Convention on Choice of Courts Agreements ("Convention").  However, despite lobbying efforts by Internet service providers and other technology companies to place so-called clickwrap agreements and other non-negotiated agreements outside the scope of the Convention, the final draft of the 12-page document does not explicitly exclude such agreements.  This raises concerns that many companies – including, for example, those that link to a website in a foreign jurisdiction – may unknowingly risk being hauled into a court halfway around the world.  Of course, the Convention must still be ratified by any country to which it would apply, and the agreed text includes an option allowing countries to opt out of the Convention on specific matters if they have a “strong interest” in doing so.  Therefore, the fight against having the Convention apply to non-negotiated agreements could spread to individual countries around the globe – raising the risk that the Convention may not actually avoid the world-wide jurisdictional muddle that it is designed to avoid.

The Friendly Skies Keep Getting Friendlier – Intercept Capabilities Proposed For In-Flight Broadband Service
In a few years, air-travel may look quite different – with coffee-stained newspapers and horrible airplane movies replaced by high-speed internet and video-on-demand.  But if law enforcement has its way, such a revolution may come at an exceedingly high cost to service providers and users.  In a July 5 filing, the Justice Department (DOJ) and the Department of Homeland Security (DHS) gave their cautious support to a Federal Communications Commission (FCC) proposal to permit the use of two-way satellite based broadband communications services aboard airplanes.  But just as they did with the FCC’s plan to allow cell-phone conversations in-flight, DOJ and DHS made their support contingent on the FCC forcing carriers to provide law enforcement with the intercept capabilities required by the Communications Assistance for Law Enforcement Act (CALEA) -- plus a long "wish list" of non-CALEA capabilities.

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