E-Commerce Law Week, Issue 428

Courts Assess Legality of Laptop Searches at Border Entry Points

Supreme Court precedent establishes that a person's expectation of privacy is far lower at the border (including at Customs control in airports) than inside the country. What that means is that even intrusive searches into one's belongings and one's person may be justified on the basis of "reasonable suspicion," or possibly no suspicion at all. Lower courts have begun to examine the issue of what level of suspicion, if any, is required to search the contents of a laptop at the border, and they have reached conflicting decisions. See United States v. Arnold and United States v. Ickes. But given the Supreme Court's precedent in the area, don't be surprised if you find a Customs inspector suddenly opening your laptop and looking through your racy vacation photos or love-letters.

Sony Wins, Coming or Going

In 1984, Sony won the famous "Betamax" case in the Supreme Court, which held that Sony's sale of its (then) cutting-edge video recorder did not constitute "contributory copyright infringement" because the Betamax was capable of "substantial non-infringing uses," such as home viewers' taping their favorite TV shows to watch later. Now, with Sony trying to squeeze the last drop of profit from the PlayStation computer entertainment systems and associated computer game programs, the shoe is on the other foot, as Sony tries to protect its own valuable copyrighted material. But Sony still wins, thanks to the Digital Millennium Copyright Act (DMCA). A recent decision by a federal district court in California interpreting the "anti-circumvention" provisions of the DMCA held that people who traffic in devices designed to circumvent copyright protection technology face liability under the DMCA, even if such devices can be used for lawful purposes.

Criticism of SWIFT Data Transfers Flows More Swiftly

As we have previously reported, the U.S. arm of the Society for Worldwide Interbank Financial Telecommunications (SWIFT), a Brussels-based international banking consortium, has been cooperating with the U.S. government's "Terrorist Finance Tracking Program," which uses administrative subpoenas to obtain information about global financial transactions. But several groups, including the European Parliament, the European Union's Article 29 Working Party (in charge of overseeing data protection), and Privacy International, have questioned whether SWIFT, in its eagerness to comply with U.S. law enforcement requests, neglected its responsibilities under the EU Data Protection Directive. Although the Article 29 Working Party has postponed issuing an opinion on SWIFT's data sharing until November, data protection officials in Belgium and Switzerland have already opined that SWIFT and its member banks broke national data protection laws, and Canada and Australia are also considering action. So the heat on SWIFT -- and other international financial institutions caught between demands for data from law enforcement (particularly US authorities) and global privacy laws -- looks unlikely to let up soon.

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