E-Commerce Law Week, Issue 421

September 9, 2006

S. 2453:  Blank Checks, False Balances

When Senator Arlen Specter (R-PA) introduced S. 2453, the "National Security Surveillance Act," he described it as a "middle ground" that would provide meaningful congressional and judicial oversight over electronic surveillance while providing the President "with the flexibility and secrecy he needs to track terrorists." Specter defended his bill as a hard-won compromise, by which the Administration would agree to subject the National Security Agency's warrantless wiretapping program to judicial review in exchange for a "recognition" of the President's inherent constitutional authority to engage in wiretapping outside the scope of the Foreign Intelligence Surveillance Act (FISA). In fact, it's hard to see how the bill is any compromise at all -- which is why S. 2453 is now at the top of the Administration's legislative agenda for the truncated fall session. S. 2453 would do far more to expand the government's ability to engage in domestic wiretapping than Senator Specter or the Administration has acknowledged. It would give the Foreign Intelligence Surveillance Court (FISC) the power to authorize entire programs of surveillance that could involve wiretapping not just suspected terrorists and spies, but anyone who has associated or communicated with a suspected terrorist or spy for any reason. Moreover, S. 2453 would significantly expand the scope of particularized surveillance orders under FISA and dramatically increase the Executive Branch's authority to engage in surveillance without any court order at all.  Finally, although the bill purports simply to acknowledge the President's constitutional authority to engage in warrantless surveillance, without affecting that authority, the bill would actually alter the legal terrain significantly and make it more likely that courts would uphold the constitutionality of the NSA's warrantless wiretapping program. This means the government could demand that communications providers assist with wiretaps even where there is no court order and no statutory authorization at all. S. 2453 was voted out of the Judiciary Committee on September 13 on a straight party-line vote, sending it to the Senate floor.

To Edit or Not to Edit, That is the Question for Website Operators

For Internet service providers and website owners, section 230 of the Communications Decency Act (CDA) offers broad protection against liability for defamation and other content-based claims. Section 230 shields both "providers" and "users" of "interactive computer services" against liability for information provided by a third party. But website operators often exercise some editorial control over what others post, deleting or editing content that is obscene or profane, that seems to infringe on intellectual property, that is simply too long, or that violates some country's content restrictions. The irony, though, is that such editorial control -- even where exercised for the purpose of avoiding legal liability -- can actually make the website owner into a "content provider," and thus deprive it of section 230 immunity. The key question in such cases is when the exercise of editorial control takes a website across the line into the realm of content provision. A recent decision by the U.S. Court of Appeals for the Eleventh Circuit, while not answering this question directly, sheds some light on it, and puts website operators on notice that even relatively minor editing of content could deprive them of CDA immunity.

First French Fine Foretells Force But Not Ferocity in Data Protection Enforcement

French data protection authority la Commission Nationale de l'Informatique et des Libertés (CNIL)announced earlier this month that it had imposed its first fine pursuant to 2004 amendments to French data protection law. The CNIL fined French banking giant Crédit Lyonnais for improperly placing the names of several individuals in national files, maintained by the Bank of France, of persons with a negative credit history, including one poor monsieur who was placed on the adverse credit list for allegedly not paying a debt which he had in fact paid.  The CNIL was particularly distressed that Crédit Lyonnais took long periods of time (in at least one case, about a year) to provide explanations for such actions, in cases that the CNIL initiated after complaints by the affected individuals. As a result, the CNIL found that Crédit Lyonnais had obstructed its investigations, and imposed a fine of €45,000. The CNIL's original decision finding violations by Crédit Lyonnais was reached in late June, but the decision on the fine was announced only this month.

Steptoe & Johnson LLP and IP Law and Business Magazine Continue Teleconference Series:  "U.S. Supreme Court Revisits Non-Obviousness"

On September 28, 2006, from 1:00-2:00 p.m. EDT, Steptoe will be hosting its fourth-in-a-series teleconference co-sponsored by IP Law and Business Magazine. Steptoe partner Roger Parkhurst will lead a panel that will discuss the Supreme Court's revisit of non-obviousness in KSR International Co. v. Teleflex Inc. and the implications the outcome will have for U.S. patents and their owners. Roger is well known in the IP bar and is a former President of the American Intellectual Property Law Association. Please RSVP to Alycia Polley, or by telephone at 202.457.5436.

Questions and Comments about E-Commerce Law Week are always welcome. Please send your feedback to Sally Albertazzie.