E-Commerce Law Week, Issue 417

Senate Approves Cybercrime Convention; More Work Ahead for Communications Providers
The U.S. Senate on August 3 gave its consent to ratification of the Council of Europe's Convention on Cybercrime, the first international regime governing electronic surveillance, evidence sharing, and computer crime. The Convention will not require any substantive changes in U.S. law, according to the Department of Justice. The primary impact will likely be in the form of increased cross-border cooperation in the collection and sharing of evidence. The Convention's "cybercrime" title is a little misleading. While the treaty does contain a section requiring harmonization of national computer crime laws, it also contains important provisions providing for the interception of electronic communications and sharing of electronic evidence regarding any crime -- not just computer crimes -- at the request of foreign law enforcement agencies. As a result, Internet service providers and network operators in the U.S. may eventually find themselves responding to data requests originating with police forces from Albania to Ukraine.

ACLU Renews Challenge to Constitutionality of NSL Gag Orders
The American Civil Liberties Union and New York Civil Liberties Union continued their fight against the gag order provisions of National Security Letters, releasing on August 7 a redacted version of their second amended complaint in the case of an NSL served on an Internet service provider. The new complaint, which was filed under seal in the Southern District of New York last month, seeks a declaration that the gag order provisions are unconstitutional and an injunction prohibiting the FBI from enforcing such secrecy provisions against plaintiffs or others. Despite recent legislation permitting limited judicial review, the constitutionality of both the underlying NSLs and the accompanying gag orders are still an open question.

Governments Differ on Whether to Censor or Censure Internet Portals
Internet censorship is not new. Repressive governments like Burma have long placed strict restrictions on any Internet access, and authoritarian governments like China and Saudi Arabia have long used technical means (like the "Great Firewall of China") to restrict which Internet sites are available on their territory. But the issue didn't really heat up until attention focused on actions of the big U.S.-based portals to comply with Chinese censorship. This led to some uncomfortable news coverage and congressional hearings in January and February. Then last month, the European Parliament adopted a resolution on freedom of expression on the Internet that notes that the "Chinese government has successfully persuaded companies such as Yahoo!, Google and Microsoft to facilitate the censorship of their services in the Chinese Internet market." The resolution calls on the European Commission and EU Council of Ministers to "draw up a voluntary code of conduct that would put limits on the activities of companies in repressive countries," although it is as yet uncertain whether such a code of conduct is actually on the cards. On August 10, Human Rights Watch issued a report renewing criticism of the "big three" for their "complicity" in Chinese censorship, and also dragged Skype into the controversy by claiming that the Chinese version of its software client "employs a filtering mechanism that prevents users from sending text messages with banned phrases such as 'Falungong' and 'Dalai Lama.'" The divergent views on Internet censorship highlight the most difficult legal problem presented by growth of the Internet -- what might be called the Jurisdiction Problem. That is, while countries have differed on standards of permissible conduct and content since time out of mind, the Internet has created a global platform on which content and online conduct is simultaneously present in numerous jursidictions, and has spawned a number of global companies who provide that content. There is simply no easy way to resolve the legal and jurisdictional conflicts that these developments produce. So you will be hearing lots more about this in years to come.

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