E-Commerce Law Week, Issue 340

Killer App Meets App Killer? Vonage Cries Foul Over Call Blocking
Voice over IP (VoIP) is often described as the next "killer app" for the Internet. But there are recent reports that a rural telephone company may be trying to kill the killer app. Vonage Holdings, the US's largest VoIP service provider, has met informally with the Federal Communications Commission, alleging that as many as 200 of its customers have had their VoIP calls blocked by their local telephone company. The outcome of the Commission's inquiry may cause ripples throughout the telecom industry. One possibility is that the FCC may decide that it's time to step in and regulate how much control broadband service providers can exert over the content and applications that pass over their networks -- or it may decide not to relieve telephone companies of certain of their nondiscrimination obligations. Either way, proponents of "net neutrality" likely will use the incident as support for their arguments that broadband service providers should be prohibited from discriminating based on content, application, or affiliation.

State Court Takes Action Against Spyware Even as Federal Spyware Bill Gains Momentum
Last month, in O’Brien v. O’Brien, a Florida state appeals court found that communications which had been intercepted illegally using spyware to be inadmissible evidence. Mrs. O'Brien (the plaintiff) had intercepted communications between Mr. O'Brien (her husband and the defendant) and another woman using a spyware program that Mrs. O’Brien installed on her husband’s computer. The court found that in using a spyware program to intercept her husband’s communications, Mrs. O’Brien had violated section 934.03(1) of Florida’s Security of Communications Act, which is closely modeled on the federal Wiretap Act (18 U.S.C. 2510-2522).

Although the ruling suggests that current law can often deal with spyware, it probably won't deter legislators from enacting bills that specifically target spyware. The most recent development on this front occurred on February 16 when the House Subcommittee on Commerce, Trade, and Consumer Protection approved Rep. Mary Bono’s (R-CA) Securely Protect Yourself Against Cyber Trespass Act (SPY ACT) (H.R. 29). An amendment to the bill clarifies that cookies or "any other type of text or data file that solely may be read or transferred by a computer" are not included in the bill’s definition of "computer software." The bill now moves to the full Committee on Energy and Commerce for debate.

Comments Sought on NIAP Role in Cybersecurity Efforts
In order to provide a strategic framework for the national effort to secure cyberspace, the Office of the President in 2003 issued the National Strategy to Secure Cyberspace (the "Strategy"). The Strategy required the federal government to conduct a comprehensive review of the National Information Assurance Partnership (NIAP) "to determine the extent to which it is adequately addressing the continuing problem of security flaws in commercial software products." On February 2, two years after the Strategy was first issued, the Departments of Defense and Homeland Security, the agencies tasked with conducting the NIAP review, issued a request for public comment on the issues that should be considered before completing the review. Comments must be received on or before March 4, 2005.

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