E-Commerce Law Week, Issue 443

Court Tells Canadian Privacy Commissioner Not to Go Wobbly on American Companies

Pamela Anderson aside, Canadians seem to care a lot about their privacy.  Or else they just don't trust Big Brother to the south.  Canadian citizens have long challenged Canadian corporations' sharing of data with their U.S. partners, arguing that such sharing violates Canada's Personal Information Protection and Electronic Documents Act because the data is subject to seizure by the U.S. government under the USA PATRIOT Act.  Those challenges thus far have proven unsuccessful.  However, a recent ruling by Canada's federal court gives a glimmer of hope to Canadians concerned about privacy.  The court ruled that Canada's Privacy Commissioner has jurisdiction to investigate an American data-broker's collection, use, and disclosure of information about Canadian citizens.  Whether that investigation actually goes anywhere is another story.

Raising, and Lowering, the Bar on Cell phone Privacy

When can police search an electronic communications device that is owned by an employer, but is used daily by an employee?  As we previously reported, the Ninth Circuit's recent ruling in United States v. Ziegler left open the possibility that, given an employer's policy of monitoring computer use, the user of a computer kept in a common space might not have a reasonable expectation of privacy in the device.  But, in United States v. Finley, the Fifth Circuit recently found that an employee "had a reasonable expectation" that the call records and text messages on his cell phone would remain private from law enforcement and the general public, even though his employer owned the phone and could have read the messages on it after it was returned.  Nonetheless, because the government's search of the phone was conducted incident to a lawful custodial arrest, the court concluded that no search warrant was required and the search was "reasonable" under the Fourth Amendment.  Combined with recent cases holding that Customs agents at the border can search the contents of a laptop with little or no reason, this case suggests that when the government wants to "reach out and touch someone," it can reach the content on one's electronic gadgets, too.

Congress Plays It SAFE on Data Retention and Child Pornography

With the beginning of the new Congress come two new bills intended to help law enforcement go after child pornography online -- the Internet Stopping Adults Facilitating the Exploitation of Today's Youth (SAFETY) Act of 2007 and Securing Adolescents From Exploitation-Online (SAFE) Act of 2007, introduced by Representative Lamar Smith (R-TX) and Senators John McCain (R-AZ) and Chuck Schumer (D-NY), respectively.  These bills would impose new requirements for Internet service providers and webmasters, including retention of subscriber records, labeling of "commercial websites containing sexually explicit material," and reporting of child pornography. Neither bill would provide compensation for costs incurred in achieving compliance with the new requirements.

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