E-Commerce Law Week, Issue 222

How to Lose Your Intellectual Property in Washington ("I know I had it when I got off the plane at National!")
A recent bid protest decision, Snell Enterprises, Inc., 2002 WL 1492090 (Comp. Gen.) (June 10, 2002) ("Snell"), underscores the importance of putting restrictive legends on proprietary data and software sent to the government. Snell claimed that a potential competitor, Impact Innovations Group ("Impact"), had obtained an unfair competitive advantage because it got to see some of Snell’s proprietary data and software. Snell had submitted the data to the government while performing a contract, and Impact was given the data while performing a related government contract. The General Accounting Office rejected Snell’s claim that Impact had obtained an unfair competitive advantage, citing Snell's failure to mark the information as proprietary prior to its submission or otherwise submitting it to the government (or Impact) with limitations on its use. In short, Snell’s claim that the information was proprietary came too late.

FTC Guidance on Safeguards Rule Reads Like Wish-List
The Federal Trade Commission ("FTC") has released new guidance to help businesses comply with the FTC's Financial Information Safeguards Rule which was finalized last May. However, the guidance reads more like a wish-list of practices that the FTC would like to see the private sector adopt. Among other things, the new guidelines say that companies should consider notifying customers if their nonpublic personal information is subject to loss, damage, or unauthorized access. Sometimes that will be a good idea, sometimes not. Fortunately for businesses, the FTC guidance is just that.

• Federal Trade Commission Guidance: "Financial Institutions and Customer Data: Complying with the Safeguards Rule," September 2002 
• Federal Trade Commission Final Rule: "Standards for Safeguarding Customer Information," May 2002
  

When is a Website Subject to the ADA?
Disability groups were recently handed a victory in a federal district court in Atlanta. The court granted, in part, a preliminary injunction against the Metropolitan Atlanta Rapid Transit Authority ("MARTA") to correct violations of Title II of the ADA, which generally prohibits discrimination against the disabled by public entities. Plaintiffs -- a group of disabled individuals -- alleged that MARTA violated the ADA because, among other things, MARTA's website did not provide plaintiffs with scheduling and route information in accessible formats for the visually impaired (i.e., its website is not compatible with screen readers). The court found MARTA to be a "public entity" for the purposes of Title II, and ordered both parties to confer "in a good fait h attempt" to agree upon a remedies Order that will address the ADA violations identified by the court. Consequently, the court Order will almost certainly require MARTA to improve the accessibility of its website.

• Order of the United States District Court for the Northern District of Georgia, Atlanta Division, in Vincent Martin, et al., v. Metropolitan Atlanta Rapid Transit Authority, et al., Civil Action File No. 1:01-CV-3255-TWT, October 2002
  

Federal Spam Legislation Advances -- Slowly
That floodtide of spam building up in your inbox isn't just putting pressure on your hard drive. It's putting even heavier pressure on Congress and on opponents of federal antispam legislation. Last week, the Direct Marketing Association (DMA) finally threw in the towel. The trade association, which represents over 4,000 direct marketers, stopped touting "self-regulation" and conceded that there is a need for Federal spam legislation. This change of heart comes late in the legislative session, but not too late to make a difference. The CAN-SPAM Act of 2002 (S. 630), sponsored by Senator Conrad Burns (R-MT) and Ron Wyden (D-OR), is close to reaching the Senate floor and passing under unanimous consent. Hard-nosed Congressional observers view the bill's chances of enactment this year as a long shot. But in this case, delay probably does not favor those who oppose legislation. Spam is increasing relentlessly -- both in volume and in nastiness. Legislators will be hearing more, not less, from their constituents about the need for action.

• Staff Discussion Draft of S. 630, as ordered reported and proposed to be amended, the "Controlling the Assault of Non-Solicited Pornography and Marketing ("CAN-SPAM") Act of 2002," October 15, 2002
  

Questions and comments about the news in E-Commerce Law Week are always welcome. Please send your feedback to Sally Albertazzie at salbertazzie@steptoe.com.