E-Commerce Law Week, Issue 333

"2004 -- Year of Cybersecurity. Not."
Two notable public-private partnerships worked in parallel in 2004 trying to come up with ways to "secure" cyberspace. US Representative Adam Putnam's Corporate Information Security Working Group (CISWG), which included trade association representatives and academics, reported recommendations. The National Cybersecurity Partnership (NCSP), a group composed of high-tech associations working with the Department of Homeland Security (DHS) to develop an outreach strategy, has initiatives lined up for early 2005. But the US still does not have a central administrator on computer security. Reestablishing the position of Cyber Czar in the White House did not make it into the 9/11 legislative package, and there has been turnover in the Information Analysis and Infrastructure Protection Directorate at DHS that could produce some jockeying for position in 2005. Several additional agencies can now lay claim to the issue, including the Treasury Department, the Federal Trade Commission, and the Federal Communications Commission. So don't count on clear cybersecurity guidance from Washington in 2005. The government is at least as confused about the issue as the technologists. And that's saying something.  

Microsoft's European Loss Looks Even Bigger in the Cold Light of Day
On December 22, the President of the Court of First Instance in Luxembourg, the second highest appellate court in the EU, ruled against Microsoft’s interim appeal of the Commission’s March 2004 Decision. The Decision required Microsoft to do two things: (1) disclose certain "specifications" (technical information) for its client-to-server and server-to-server communication protocols, and (2) offer consumers and computer manufacturers a "stripped down" version of Windows that does not contain Windows Media Player (WMP). The purpose of the disclosures under the Decision is to make competitors’ servers work more seamlessly with Windows PCs and with Microsoft servers. The purpose of the stripped down version of Windows is to allow other streaming media player companies, such as RealNetworks, an opportunity to compete against WMP on the merits. If consumers or OEMs prefer an alternative to WMP, it can now be installed in Windows in place of WMP. The Decision only covers Europe, although the disclosures should help competitors in the server market around the globe. 

Federal Court Affirms Injunction Against State VoIP Regulation
On December 22, 2004, the Eighth Circuit Court of Appeals affirmed a federal district court's injunction against Minnesota's attempt to regulate Voice over Internet Protocol (VoIP) service. However, the decision is only a temporary victory for companies like Vonage that provide consumers with the ability to make phone calls over the Internet, as the Eighth Circuit did not actually reach the merits of the FCC's preemption order, deciding instead that the order could not be collaterally challenged but had to be appealed separately. This means that we will not know for sure whether state regulation of VoIP has been preempted until all appeals of the FCC's Vonage preemption order have been exhausted. Until then, VoIP providers have side-stepped state regulation for just a little bit longer.

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